Monland Pty Ltd v Oman [2026] VSC 240 (30 April 2026)

AustLII Search

Supreme Court of Victoria

Search AustLII

▼ Search Options

All databases
This database only
Full text
Titles only
Advanced Search…

Search term: ×

Specific Year
Any 2015

Monland Pty Ltd v Oman [2026] VSC 240 (30 April 2026)

Last Updated: 1 May 2026

IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2024 04086

MONLAND PTY LTD (ACN 615 257 308)	Plaintiff/Defendant by Counterclaim

V

MARK HARRY OMAN	Defendant/Plaintiff by Counterclaim

---

JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	2–4 December 2025, 28 January 2026
DATE OF JUDGMENT:	30 April 2026
CASE MAY BE CITED AS:	Monland Pty Ltd v Oman
MEDIUM NEUTRAL CITATION:	[2026] VSC 240

---

GUARANTEE — Personal guarantee — Borrower in liquidation — Guarantor’s liability for shortfall — Guarantor does not dispute execution of guarantee or existence of shortfall — Sole defence based on oral representations alleged to have been made by lender’s principal that lender would not pursue guarantor personally — Representations found not to have been made — Judgment entered for lender.

EVIDENCE — Assessment of credibility and reliability of witnesses — Fallibility of human memory in relation to conversations — Risk of unconscious reconstruction of recollection to align with litigation interests — Weight to be accorded to contemporaneous documentary record over oral testimony — Demeanour alone insufficient guide to credibility.

ESTOPPEL — Promissory estoppel — Whether alleged representations clear and unambiguous so as to induce assumption that promisor would not be free to withdraw — Distinction between statement of present intention and promise as to future conduct — Statement that it is not promisor’s intention to enforce guarantee does not constitute promise that guarantee will never be enforced — S.T.Y. (Afforestation) Pty Ltd v Atkinson [2006] VSCA 283 applied.

MISLEADING OR DECEPTIVE CONDUCT — Section 18 of the Australian Consumer Law — Section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) — Representations as to future matter — Section 4 of the Australian Consumer Law — Evidential burden where representations as to future matter alleged — Statement of present intention distinguished from representations as to future conduct — Statement of present intention not rendered misleading merely by subsequent change of mind.

DAMAGES AND LOSS — Reliance and loss — Alleged loss being forgone opportunity to sell property to third party — Third party offer not a genuine commercial proposition capable of completion as at date of alleged representations —Assessment of viability of alternative confined to information available at relevant date — Offer accepted above independent market valuation — Accepted offer avoided risk of lower mortgagee sale price — No reliance or loss established.

DECLARATORY RELIEF — Jurisdiction to grant declaratory relief — Section 36 of the Supreme Court Act 1986 (Vic) — Discretionary nature of power — Requirement for real interest in relief and real controversy — Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 applied — Practical utility of declaration — Declaration as to operation of Victorian-law-governed contracts — Contractual obligation to provide security over foreign land upon request.

ABUSE OF PROCESS — Parallel proceedings in foreign jurisdiction — Whether maintenance of domestic claim amounts to abuse of process — Domestic proceeding commenced before foreign proceeding instituted — Foreign proceeding limited to preservation of status quo — Different issues in domestic and foreign proceedings — Domestic proceeding concerned construction of Victorian contracts — Foreign proceedings concerned preservation of land pending determination of rights— Onus on party asserting abuse of process not discharged — CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 applied — Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 applied — Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DF McAloon SC	Hall & Wilcox

For the Defendant	Mr MA Robins KC with Mr NJ Bird	HWLE Lawyers

HIS HONOUR:

A. INTRODUCTION

1 This proceeding relates to a substantial loan facility provided by the plaintiff, Monland Pty Ltd (Monland), to Residence Company Pty Ltd (Residence Company), a property development vehicle controlled by the defendant, Mark Harry Oman.

2 Mr Oman is the sole director of Residence Company and personally guaranteed Residence Company’s obligations under the Loan Facility Agreement.

3 The borrowings were applied principally to the development of a residential apartment project at 10–16 Lilydale Grove, Hawthorn East (Hawthorn East Property).

4 That project encountered severe difficulties, leaving Monland with a debt exposure that, by early 2024, exceeded $39 million and was accruing interest at over half a million dollars per month.

5 Monland commenced this proceeding in August 2024 seeking to recover the outstanding guaranteed debt from Mr Oman personally. Residence Company went into liquidation on 6 August 2025.

6 Mr Oman defends the claim and brings a counterclaim, contending that the principal director of Monland, Kameel Mondous, made oral representations to him on 14 March 2024 which induced him to cause a company he controlled, Orbal Marketing Services Pty Ltd (Orbal), to sell a property located at 974–1048 Melton Highway, Plumpton (Plumpton Property) for $13 million, rather than pursue a competing offer of $20.6 million.

7 Mr Oman alleges that Mr Mondous represented that Monland had no intention of ever recovering, and would not pursue, the outstanding guaranteed debt from Mr Oman personally provided Orbal acted promptly to sell the Plumpton Property for $13 million.

8 Mr Oman alleges that those representations constituted misleading or deceptive conduct and gave rise to a promissory estoppel that bars Monland from enforcing the personal guarantee against him.

9 The case turns upon what was said during a telephone call of less than five minutes’ duration between Mr Oman and Mr Mondous on 14 March 2024. Senior counsel for Monland described this proceeding at the outset as ‘a hard swearing case’. While that description captures something of its character, the resolution of the dispute does not rest upon a simple choice between two competing witnesses. The Court’s task is to determine, by reference to the contemporaneous documentary record, the inherent probabilities, and the conduct of the parties, what was most likely said during that call, assessing the oral evidence of the two principal witnesses in light of the objective material.

10 A secondary issue in dispute is whether this Court should grant declaratory relief in respect of a property in Slovenia which Mr Oman transferred to his partner, Urska Sabec, for no consideration. That transfer is the subject of court proceedings in Slovenia initiated by Monland, as the property formed part of the security provided under the Loan Facility Agreement.

B. FACTUAL BACKGROUND

B.1 Dealings between Monland and Mr Oman

11 In July 2019, Mr Oman, on behalf of Residence Company, approached Mr Mondous to discuss whether Monland would finance the development of residential apartments at the Hawthorn East Property.

12 On 8 July 2021, Residence Company entered into a Construction Contract with Merkon Constructions Pty Ltd (Merkon) for the construction by Merkon of the residential apartments at the Hawthorn East Property for a lump sum of $28,826,000 (exclusive of GST).

13 On 1 November 2019, Residence Company, Monland, Mr Oman and Orbal entered into a Loan Facility Agreement by which Monland agreed to provide a non-revolving, cash advance facility of up to $40 million to Residence Company to facilitate the payment of construction costs, and Mr Oman and Orbal gave a guarantee and indemnity in respect of Residence Company’s obligations.

14 Among other things, the Loan Facility Agreement provided, in clause 5.3, for any proceeds of sale from the apartments when constructed to be paid to Monland and applied to reduce amounts owed by Residence Company under the agreement.

15 Under the Loan Facility Agreement, Residence Company, Orbal and Mr Oman granted Monland security over the following assets:

(a) the Hawthorn East Property by way of a first ranking mortgage;

(b) a property located at 550 Swan Street, Richmond (Richmond Property) owned by Residence Company by way of a third ranking mortgage;

(c) the Plumpton Property owned by Orbal by way of a third ranking mortgage;

(d) a property located at 42 Podkoren 4280, Slovenia owned by Mr Oman (Slovenian Property); and

(e) all present and after acquired property of Residence Company.

16 Clause 12.3 of the Loan Facility Agreement provided:

Each Obligor for valuable consideration, to secure the performance of its obligations under each Finance Document, irrevocably appoints the Financier and each Authorised Officer of the Financier separately as its attorney to do any or all of the following on its behalf and in its or the attorney’s name while an Event of Default subsists...

(c) anything which the Attorney considers necessary or expedient to give effect to a Power or exercise of a Power, or to perfect any Finance Document, including by signing any document for that purpose...

17 Pursuant to the Loan Facility Agreement, Residence Company was required to repay Monland all outstanding monies by no later than 31 December 2020.

18 Contemporaneously with the Loan Facility Agreement, on 1 November 2019, Monland, Residence Company and Merkon entered into a builders side deed (Builders Side Deed).

19 The Builders Side Deed provided, in clause 3.3(b), that Merkon undertook to Monland that it would not take or maintain any security interest over the Hawthorn East Property or lodge a caveat against the property, or any part of the property, without Monland’s consent.

20 Construction of the residential apartments at the Hawthorn East Property was delayed during 2020 due to the COVID-19 pandemic.

21 In September 2021, Residence Company, Monland, Mr Oman and Orbal entered into a deed of amendment which extended the date under the Loan Facility Agreement by which Residence Company was required to repay Monland all outstanding monies to 1 March 2023.

22 On 8 October 2021, Merkon and Residence Company, without the knowledge of Monland, entered into a deed of variation of the Construction Contract which, among other things, increased the contract sum from $28,826,000 (exclusive of GST) to $37,088,635 (exclusive of GST), amended the date for practical completion from 4 July 2020 to 15 October 2021 and provided that Residence Company would provide Merkon with an executed mortgage over the Hawthorn East Property.

23 On 8 October 2021, Residence Company executed an instrument of mortgage in favour of Merkon in respect of the Hawthorn East Property (Merkon mortgage), in breach of the Loan Facility Agreement.^[1]

24 Between 1 November 2019 and 14 October 2021, Monland advanced funds exceeding $43 million to Residence Company (or at its direction to Merkon) pursuant to the Loan Facility Agreement.

25 On 9 September 2021, a certificate of occupancy was issued for the Hawthorn East Property, and a certificate of practical completion was issued on 8 October 2021. Only a small number of the 91 apartments were sold before the Loan Facility Agreement expired on 1 March 2023. The amounts owing under the Loan Facility Agreement remained unpaid.

26 In January 2023, Mr Oman and Mr Mondous discussed the expiry of the Loan Facility Agreement, and agreed on a proposal whereby the facility would be extended until September 2023, and the interest rate would be maintained at 10% per annum.

27 On 26 February 2023, Merkon lodged a caveat over the Hawthorn East Property based on the equitable mortgage granted to Merkon by Residence Company pursuant to the Merkon mortgage.

28 Between March and September 2023, Mr Oman had several discussions with Mr Mondous regarding the strategy for the sale of the unsold apartments at the Hawthorn East Property (Remaining Apartments) and repayment of the amount payable under the Loan Facility Agreement.

29 On 21 August 2023, Merkon commenced proceeding number S ECI 2023 03762 against Residence Company and Monland seeking a declaration that the amount owed by Residence Company to Merkon and secured by the Merkon mortgage was $2,448,869.55 and judgment for that amount.^[2]

30 On 4 September 2023, Hall & Wilcox, on behalf of Monland, issued a demand to Residence Company requiring immediate payment of the sum of $38,505,824.88 then owing under the Loan Facility Agreement.

31 Residence Company did not make payment pursuant to the demand.

32 On 18 October 2023, Residence Company, Monland, Mr Oman and Orbal entered into a deed of forbearance (Deed of Forbearance) extending the date by which Monland sought repayment of the amounts owing under the Loan Facility Agreement.

33 Pursuant to the Deed of Forbearance, Residence Company was required to pay Monland the outstanding sum of $38,505,824.88 owing under the Loan Facility Agreement by 27 November 2023.

34 Clause 4(e) of Schedule 1 to the Deed of Forbearance provided:

At any time during or after the Forbearance Period, the Lender may require the Individual Guarantor to provide further security over the Slovenia Land to secure the Guarantee. The Individual Guarantor must provide all assistance and execute any document (such as the Slovenian equivalent of a mortgage) within 7 days’ of being requested.

35 Residence Company did not make payment of the amount owing by 27 November 2023.

36 On 11 January 2024, Hall & Wilcox wrote to Residence Company’s solicitors, notifying Residence Company that Monland intended to exercise its rights pursuant to the Deed of Forbearance after 15 January 2024.

B.2 Sale of the Plumpton Property

37 The Plumpton Property was a large rural/industrial land parcel owned by Orbal. It was subject to prior mortgages in favour of Millbrook Mortgage Management Ltd (Millbrook Management) and Millbrook Funds Pty Ltd (Millbrook Funds) and a third ranking mortgage in favour of Monland.

38 On 15 January 2024, Orbal received an offer to purchase the Plumpton Property from Cleveland Capital Group Pty Ltd (Cleveland) for $20,600,000. Orbal and Cleveland executed a terms sheet documenting that offer.

39 On the same day, Mr Oman outlined to Mr Mondous his plans to repay the debt owing under the Loan Facility Agreement. Mr Oman noted that Orbal had received an offer from Cleveland regarding the purchase of the Plumpton Property and provided Mr Mondous with a copy of the terms sheet.

40 The offer from Cleveland was subject to a number of conditions and included a due diligence period of 45 days after which Cleveland was required to pay a deposit of $2,000,000. The offer also required Cleveland to pay Orbal a $50,000 exclusive dealing fee on the date the parties executed the terms sheet which would be refunded if the sale did not proceed.

41 On 19 January 2024, Mr Oman and Mr Lyall, of the Millbrook Group, exchanged correspondence. Mr Lyall raised the prospect of the first mortgagee issuing a default notice and putting the Plumpton Property up for sale if the outstanding interest was not paid.

42 On 8 February 2024, Rudy Keleman, a real estate agent, contacted Orbal to say that he had received an unconditional offer from Istvan Pty Ltd (Istvan) for the purchase of the Plumpton Property for $13,000,000. Istvan confirmed its interest in purchasing the Plumpton Property by signing a heads of agreement and paying an initial deposit of $130,000 on that day. On 6 March 2024, Istvan paid a further deposit of $1,170,000 into Mr Kelemen’s trust account.

43 On 10 February 2024, Millbrook Management obtained a valuation of the Plumpton Property authorised by Mr Oman,^[3] that assessed the Plumpton Property’s ‘As Is – Vacant Possession’ market value as $10.88 million.

44 On 14 February 2024, Millbrook Management’s solicitors served a notice of default and demand upon Orbal terminating its loan facility and requiring payment of approximately $1.26 million plus enforcement costs by 15 March 2024.^[4] There was no evidence that Orbal or Mr Oman had any capacity to satisfy that demand.

45 Critically, Millbrook Management’s default notice expired on 15 March 2024, the day after the events of 14 March 2024 to which I will refer. Mr Oman was aware of this but did not disclose it to Mr Mondous.^[5]

46 On 4 March 2024, Millbrook Management liaised with potential selling agents (Biggin and Scott) about a mortgagee sale of the Plumpton Property.

47 On or about 7 March 2024, Cleveland requested an extension of the four week due diligence period under its terms sheet. Mr Oman informed Mr Mondous of the request for an extension by email on 8 March 2024.

48 The events of 14 March 2024 may be summarised as follows:

(a) at 9:48 am, Mr Kelemen emailed Mr Oman stating that Istvan was extremely unhappy and that its offer would be withdrawn and the deposit refunded if Orbal did not sign the heads of agreement or a contract by 5:00 pm that day;

(b) at 12:09 pm, Mr Oman attempted to call Mr Mondous;

(c) at 12:10 pm, Mr Oman sent a text message to Mr Mondous asking him to call regarding refinance;

(d) at 3:18 pm, Mr Kelemen emailed Mr Mondous describing Mr Oman as his ‘own worst enemy’ and stating that Monland ‘will need to buy this from the receiver’;

(e) at 3:19 pm, Mr Oman called Mr Kelemen. The call lasted one minute and 45 seconds;

(f) at 3:27 pm, Mr Oman called Mr Kelemen. The call lasted five minutes and 42 seconds;

(g) at 3:41 pm, Mr Oman sent a text message to Mr Mondous stating that their call had dropped out and asking him to call back;

(h) at 3:43 pm, Mr Oman called Mr Mondous. The call lasted four minutes and 50 seconds;

(i) at 3:59 pm and 4.00 pm, Mr Oman attempted to call Mr Kelemen;

(j) at 4:13 pm, Mr Oman emailed Mr Kelemen a copy of the Istvan heads of agreement signed by Orbal;

(k) at 4:22 pm, Mr Kelemen forwarded the signed heads of agreement to Mr Mondous; and

(l) at 6:42 pm, Mr Kelemen emailed Mr Oman a sale authority to be signed and returned.

49 On 18 March 2024, Mr Kelemen was formally engaged by Orbal to act as agent for the sale of the Plumpton Property. The sale authority stated that the Plumpton Property was to be sold with vacant possession, and that Orbal’s estimated selling price for the Plumpton Property was $13,000,000.

50 Complicating the position was the fact that the Plumpton Property was occupied by Ms Matthia Viering, the former domestic partner of Mr Oman’s father, pursuant to a 1997 Family Court order giving her indefinite sole occupancy rights over the farmhouse on the property. Mr Oman did not disclose this occupancy to Mr Kelemen, Mr Mondous, Millbrook or the Millbrook valuer.

51 On 15 May 2024, Istvan and Orbal entered into a deed of variation of the heads of agreement which reduced the purchase price for the Plumpton Property to $12.5 million plus GST, due to Ms Viering’s refusal to vacate the farmhouse.

52 At settlement of the sale of the Plumpton Property, which occurred on 17 May 2024, Monland received $5,705,540.85.

B.3 Sale of apartments at the Hawthorn East Property

53 The sale of the Remaining Apartments progressed concurrently with the sale of the Plumpton Property.

54 On 6 February 2024, Monland appointed Craig Peter Shepard and Andew Lyall Knight as receivers and managers (Receivers) over assets of Residence Company including the Remaining Apartments.

55 After a marketing campaign for the Remaining Apartments, the Receivers obtained several offers to purchase those apartments. The highest offer was from Sunrise Foundation Limited, a registered charitable organisation, and involved entering into a donation deed whereby approximately $10 million would be donated by Residence Company to Sunrise Foundation as a set-off to the purchase price of approximately $40 million payable by Sunrise Foundation. The benefits of entering into the donation deed would have been foregone if the Receivers had sold the property.

56 Consequently, on 29 April 2024, Monland varied the appointment of the Receivers to return control of the Remaining Apartments to Residence Company.

57 On 1 May 2024, Residence Company entered into contracts for the sale of the Remaining Apartments to Sunrise Foundation for $29,696,600 (taking into account the amount to be set-off under the donation deed).

58 At settlement, which occurred on 31 May 2024, Monland received $25,262,168.10.

B.4 Sale of the Richmond Property

59 Control over the Richmond Property also passed to the Receivers on 6 February 2024 on their appointment over the assets of Residence Company.

60 On 25 July 2024, the Receivers entered into a contract of sale of the Richmond Property for $13,600,000 plus GST.

61 At settlement, which occurred on 22 December 2024, Monland received $3,252,604.49.

B.5 The Slovenian Property

62 On 31 July 2024, Mr Oman entered into a notarial deed, being an ‘Agreement on the Division of Joint Property between Unmarried Partners’, pursuant to which Mr Oman sought to transfer ownership of the Slovenian Property to his partner Ms Sabec for no consideration (Slovenia Deed).

63 On 26 August 2024, Ms Sabec made an application to the Slovenian Land Registry to become the registered proprietor of the Slovenian Property on the basis of the Slovenia Deed.

64 On 6 September 2024, the Slovenian Land Registry published a Land Registry Resolution granting Ms Sabec’s application to become the registered owner of the Slovenian Property.

65 On 13 September 2024, Monland made an application to the District Court of Jesenice to annul the transfer to Ms Sabec.

66 On 27 September 2024, the District Court of Kranj granted a temporary injunction to prevent Ms Sabec from encumbering or further disposing of the Slovenian Property.

67 On 8 October 2024, Ms Sabec filed an objection to the temporary injunction granted by the District Court of Kranj, which was dismissed on 29 January 2025.

68 On 20 February 2025, Ms Sabec filed an appeal from the decision of the District Court of Kranj on 29 January 2025. The appeal is yet to be determined.

B.6 The present proceeding

69 On 18 July 2024, Hall & Wilcox sent a letter to Mr Ian Hone, Mr Oman’s solicitor at the time, demanding Mr Oman make payment of the amount of $10,881,829.08, being the amount then owing to Monland under the Loan Facility Agreement. Mr Oman did not make payment pursuant to the demand.

70 On 19 July 2024, Mr Oman sent an email to Mr Mondous stating:

Hi Kameel,

I tried to call you today to find out the current situation and also discuss the GST being held with Tisher Liner. I have asked you when we have previously talked if you could send the Loan Statement as I have not received a statement since October 2023 and you have indicated a shortfall of still 6 Million AUD.

You have said it was your intention to let me be able to recover some of my substantial losses by handing back control of Swan Street which would also allow me to pay back the money still owing. I have arranged finance with Millbrook for 3 Million dollars but am unsure as to your intentions having received correspondence from your lawyers demanding me to personally pay $10 million within 7 days.

You have also stated on many occasions that it was not your intention to come personally as this would mean leaving my family homeless. I have to reply to Hall & Willcox but would prefer to speak to you before I do as I have always worked with you and trusted in what you have said.

Regards,

Mark

71 On 22 July 2024, Mr Mondous sent an email to Mr Oman stating:

Hi Mark,

Without Prejudice

I refer to our telephone conversation the week before last and our subsequent telephone conversation while you were on holiday in Malta.

I stated that I would consider Monland being refinanced out of Swan street on the basis Monland would receive $3.5m and stated there is and would be still a large amount of debt outstanding even after a sale/refinance that would need to be paid. The approx $6m referred to on the phone was after taking into consideration the settlement proceeds from Richmond. Nor did I include KordaMentha’s recent invoice of $142k.

You stated that you would be able to achieve $3m to Monland from refinancing with Millbrook. You also said that if you could refinance Monland out of Swan street, you would like to come to an arrangement to pay Monland any outstanding amount from the profits of the project from Richmond.

I asked you to provide me a summary/ explanation of how that may look - I note to date, I have not received a suggestion of how Monland would be paid from your proposed development of Richmond.

As you are aware, there is a DD underway with Fortis with 5 month settlement terms. This would result in Monland receiving approximately $3.5m from the settlement proceeds.

From consideration, to wait in excess of 3 years for you to refinance Monland, find a JV partner, obtain plans and permits for the site, demolish, build, sell and settle the project is not something I can accommodate.

I have been extremely patient throughout this entire facility, but I cannot wait another 3+ years.

From this, H&W will be looking at all avenues to recoup Monland’s outstanding debt as per the attached. For clarity, Monland will pursue all its right to be paid in full. This includes the funds held in Tisher Liner trust account. As stated previously, we are of the opinion that these funds belong to Monland. We are a secured creditor, and the funds belong to Monland as creditor.

Please inform Tisher Liner to release the funds as soon as possible. Failing to do so will result in litigation to pursue these funds, which will incur additional costs that will be claimed against you.

Moving forward, please communicate via email, as I would prefer our communication in writing so there is no confusion. As requested, attached is a loan statement.

Regards,

Kameel

72 On 7 August 2024, Monland commenced this proceeding seeking to recover from Mr Oman, pursuant to his personal guarantee, the amount allegedly owing to Monland under the Loan Facility Agreement.

73 On 7 August 2024, Hall & Wilcox served a certificate under clause 21.17 of the Loan Facility Agreement on Residence Company stating that Residence Company was indebted to Monland in the sum of $10,972,662.00 as at that date.

74 On 6 September 2024, Monland filed an application for summary judgment in this proceeding.

75 On 7 October 2024, after service of the application for summary judgment on him, Mr Oman filed and served a defence in this proceeding.

76 On 7 November 2024, Monland’s application for summary judgment was dismissed by consent.

77 On 1 December 2025, Hall & Wilcox served a further certificate under clause 21.17 of the Loan Facility Agreement on Residence Company stating that Residence Company was indebted to Monland in the sum of $11,172,013.97 as at 29 November 2025.

C. ISSUES IN DISPUTE

78 The issues in dispute are:

(a) First, whether Mr Mondous made the alleged representations during a telephone call with Mr Oman on 14 March 2024.

(b) Secondly, if those representations were made, whether a promissory estoppel arises and operates as a defence for Mr Oman to the claim that he is liable to pay monies under the Loan Facility Agreement or otherwise operates to grant Mr Oman separate relief under his counterclaim.

(c) Thirdly, whether Monland is entitled to declaratory relief in respect of the Slovenian Property, or whether seeking such relief amounts to an abuse of process in circumstances where court proceedings relating to the Slovenian Property are on foot in Slovenia.

(d) Finally, what relief flows from the resolution of these issues.

D. WITNESSES

79 The plaintiff called Mr Mondous and Mr Kelemen.

80 The defendant, Mr Oman, gave evidence and also subpoenaed Mr John LaPenta, the sole director and shareholder of Cleveland.

81 I will discuss their evidence, including issues relating to credibility, below.

E. WERE THE ALLEGED REPRESENTATIONS MADE?

E.1 The competing accounts

E.1.1 Mr Oman’s account

82 Mr Oman’s evidence was that, during his telephone call with Mr Mondous on 14 March 2024, he discussed his concerns about the Cleveland offer, the Istvan offer, and his personal exposure under the guarantee.

83 Mr Oman gave the following evidence:

And then I, I was speaking to him regarding the letter I received from, from Rudy Kelemen that morning and the, the current situation and as I said, I had a very good relationship with Kameel and I wanted to get what he thought I should do ‘cause the receiver’s already appointed over um Lilydale Grove and Swan Street. And so I asked him. I said um - I asked him what I should do and it was his advice and um strong recommendation to accept the Istvan offer for 13 million and the reason why I then – I’d been resisting that is because it’s a significant difference between the price of 13 and 20.6 and accepting the 13 mil would expose me personally to, to, to um the amounts still owed to Monland. And then I asked him if he would ah - if he was going to pursue me personally and he said no, that’s not his intention. It was never his intention. Um that gave me - and that gave me real comfort, and based on that I signed the ah, the Istvan heads of agreement shortly after, then sent it through to Rudy Kelemen.^[6]

E.1.2 Mr Mondous’s account

84 Mr Mondous’s evidence was that he recalled, during the telephone call with Mr Oman on 14 March 2024, discussing the Cleveland and Istvan offers and advising Mr Oman that in his view the Istvan offer was a ‘healthy offer’.

85 Mr Mondous denied that the topic of Mr Oman’s personal guarantee was discussed. When asked why he and Mr Oman could not have discussed Mr Oman’s personal liability at the time, Mr Mondous gave the following evidence:

Because the Plumpton property was the first property for sale. So, nobody - we knew the outstanding debt at the time, but again Hawthorn and Richmond, we were of the belief it had sufficient equity in them. Nobody could have known that there may have been a shortfall. So, to say there could’ve been a shortfall and if there is a shortfall, don’t pursue me for it is illogical because there was sufficient equity in Hawthorn and Richmond and if we thought there wasn’t, we would’ve engaged KordaMentha on Plumpton but we didn’t.^[7]

86 He attributed Mr Oman’s change of position to the realisation that the Cleveland offer was not going to proceed, that the Istvan offer represented value, and that the risk of the Receivers selling at a lower price was real.

E.2 Submissions

E.2.1 Plaintiff’s submissions

87 Monland submitted that the onus rests on Mr Oman to prove, with a degree of precision, sufficient to satisfy the Court, that the alleged representations were made.

88 It relied on the observations of McLelland CJ in Watson v Foxman (Watson)^[8] which emphasise the fallibility of human memory in relation to conversations, the danger of self-interested reconstruction, and the particular difficulty of satisfying a court of alleged oral statements in the absence of contemporaneous corroboration.

89 Monland submitted that Mr Oman’s account was precisely the kind of self-serving reconstruction warned against in Watson, noting that Mr Oman’s first reference to the representations having being made in a conversation in March 2024, appeared in an affidavit sworn by him in October 2024, seven months after the alleged conversation took place. No contemporaneous email, letter, text message, or other record of the alleged representations corroborates his account.

90 As to the substance of Mr Mondous’s evidence, Monland submitted that his denial was coherent and commercially logical. Monland submitted that at the time of the 14 March 2024 conversation, both parties anticipated that the proceeds from the secured properties, including the Hawthorn East and Richmond Properties, would be sufficient to repay Monland’s debt. Against that background, Monland submitted that there was simply no occasion for the topic of Mr Oman’s personal liability to arise. It submitted that the suggestion that Mr Mondous would have voluntarily surrendered the benefit of a personal guarantee, without consideration, without legal advice, and without any written record, in the course of a brief telephone call, was inherently improbable.

91 Monland also submitted that Mr Oman’s conduct after 14 March 2024 was inconsistent with a person who believed his personal liability had been extinguished. Between March and July 2024, Mr Oman actively sought to arrange refinancing and communicated with Mr Mondous in terms consistent with an understanding that his personal guarantee remained on foot.

92 Monland submitted that Mr Oman’s reliance on his email of 19 July 2024 and Mr Mondous’s reply of 22 July 2024 was misplaced. Those emails were sent after the dispute had crystallised. Moreover, Monland submitted that Mr Mondous’s reply of 22 July 2024, while not addressing the alleged assurances specifically, was entirely consistent with Mr Mondous treating Mr Oman as bound by his personal guarantee and as having no entitlement to be released from it.

93 Monland also relied on Mr Oman’s conduct in late July 2024, in transferring the Slovenian Property to his partner, Ms Sabec, for no consideration, as conduct wholly inconsistent with the existence of any assurance that the guarantee would not be enforced. If Mr Oman genuinely believed he had received such an assurance in March 2024, there would have been no occasion, four months later, to divest himself of the very asset he had personally agreed to provide as security.

94 Monland contended that the Cleveland offer was, on the information available as at 14 March 2024, not a genuine commercial proposition. As at that date Cleveland had paid neither the exclusive dealing fee nor the required deposit, had not completed any meaningful due diligence within the period provided, and had given no indication of confirmed funding. The impending expiry of the Millbrook default notice on 15 March 2024, provided an independent explanation for Mr Oman’s change of position.

95 Monland also relied on several matters bearing on Mr Oman’s credit: his concealment of Ms Viering’s occupancy of the Plumpton Property; his failure to disclose the Merkon security arrangement; his failure to disclose the Millbrook default notice; and his transfer of the Slovenian Property to his partner for no consideration when enforcement became imminent.

E.2.2 Defendant’s submissions

96 Mr Oman submitted that the representations were made during the telephone call of 14 March 2024 and that his account was coherent, direct and consistent throughout the proceeding.

97 He submitted that the critical question was what caused him to reverse his position between 3:18 pm, when he was described by Mr Kelemen as his 'own worst enemy’, and 4:13 pm, when he transmitted the executed heads of agreement. The only event of significance in that interval was his telephone conversation with Mr Mondous. Mr Oman submitted that his account of what was said was the more persuasive explanation.

98 Mr Oman submitted that he had been actively pursuing the Cleveland offer as late as 8 March 2024, and had communicated to Mr Mondous his concern that accepting the Istvan offer of $13 million would expose him personally to any shortfall. He submitted that he was extremely resistant to the Istvan offer and would not have accepted it without the assurance he said Mr Mondous gave him.

99 As to the absence of any contemporaneous record, Mr Oman submitted that the parties had, on prior occasions, conducted their affairs on the basis of oral agreements, including the January 2023 extension of the loan facility, without reducing those agreements to writing. He submitted that he had absolute trust in Mr Mondous and reasonably expected that an oral assurance would be honoured, consistent with the parties’ established practice.

100 Mr Oman submitted that his email of 19 July 2024 constituted corroboration of his account. In that email he stated that Mr Mondous had, on many occasions represented that he had no intention of pursuing Mr Oman personally, as doing so would leave his family homeless. Mr Oman submitted that Mr Mondous’s response of 22 July 2024, while lengthy and combative, contained no denial of that statement, and that the only rational inference was that Mr Mondous did not deny it because it was true.

101 Mr Oman attacked the credit of both Mr Mondous and Mr Kelemen. He submitted that Mr Mondous had sworn a false affidavit in August 2025 overstating Mr Oman’s debt by more than $3,250,000, that Mr Mondous had failed voluntarily to correct that error, and that his evidence about the extent of his dealings with Mr Kelemen was evasive. As to Mr Kelemen, Mr Oman submitted that his evidence that a mortgagee auction of the Plumpton Property was advertised on the internet by 14 March 2024 was unsupported by any documentary evidence and was contradicted by Millbrook’s records.

E.3 Applicable legal principles

E.3.1 Standard of proof

102 In civil proceedings the applicable standard of proof is the balance of probabilities.^[9] The Court must take into account the nature of the cause of action, the subject matter of the proceedings, and the gravity of the matters alleged.

103 The standard demands genuine persuasion, being an actual and subjective satisfaction that the relevant fact occurred. It cannot be met by imprecise evidence, indefinite testimony or indirect inference. Where the evidence leaves the Court without positive persuasion, the party bearing the onus of proof must fail.^[10]

104 The gravity of the matters alleged bears directly on the degree of satisfaction required. Where a finding would carry serious legal consequences, a court will not act on slight or inconclusive evidence. The strength of evidence necessary to generate the requisite satisfaction is commensurate with the significance of what is alleged.^[11]

105 Where spoken words are themselves the foundation of a cause of action, the conversation must be proved to the Court’s reasonable satisfaction. That standard is not easily reached in the absence of reliable contemporaneous records or other satisfactory corroboration. Any alleged agreement must also be shown to have been intended to create legal relations and to be capable in its terms of forming a binding contract.^[12]

E.3.2 The fallibility of memory

106 Human memory is an inherently unreliable vehicle for establishing the content of conversations occurring years before trial. Memory is not a fixed record. Each act of recall involves a process of reconstruction, and the very act of remembering alters what is subsequently retained. Neither the vividness of a recollection nor the confidence with which it is held provides a reliable indication of its accuracy.^[13]

107 The unreliability of memory in relation to conversations has several identifiable causes. Accuracy diminishes with time, regardless of the significance of the event. Where a dispute has emerged, a witness’s recollection becomes susceptible to subconscious distortion by self-interest and by hindsight about what ought to have been said. Perhaps most significantly, a witness may sincerely believe they are recalling a conversation when they are in fact constructing a plausible account from the surrounding circumstances, with little or no connection to what was actually said.^[14]

108 The process of preparing for trial compounds these difficulties. Drafting and revising witness statements, reviewing documents including materials the witness did not see at the time of the relevant events, and discussing the matter with lawyers can progressively replace original memory with a later reconstruction that feels equally authentic but may be substantially less accurate. The act of confronting a witness with inconsistencies during preparation may itself introduce further distortion.^[15]

109 Questions asked of witnesses in cross examination about whether they are recollecting rather than reconstructing tend to be unhelpful at best and misleading at worst. All memory of past events involves some reconstruction, and a witness has no reliable means of distinguishing one from the other. The apparent certainty with which a witness advances their account says nothing about its accuracy. Indeed, the greater the precision with which a witness purports to recall the exact words of a conversation held years before trial, the more reason there may be to question whether what is being offered is genuine memory or a version shaped by the litigation process.^[16]

E.3.3 Contemporaneous documents and the primacy of objective evidence

110 In cases turning on conversations occurring years earlier, factual findings should be grounded primarily in the contemporaneous documentary record, in established and undisputed facts, and in the inherent logic and probability of events. Recollection evidence functions as a secondary and inherently less reliable source.^[17]

111 Documents do not automatically prevail over oral testimony. Where the documentary record is sparse or indirect, and oral evidence has not been challenged in cross-examination and has not been found to be unreliable, that testimony should not be lightly discounted. All evidence must be weighed in context. The quality and character of any document, including its proximity to the relevant events and the purpose for which it was created, must itself be assessed before weight is accorded to it.^[18]

112 However, it is generally difficult to persuade a court that a witness’s recollection of a conversation is preferable to a contemporaneous document recording the position at or near the relevant time, particularly where the two are inconsistent. A witness’s recollection and a contemporaneous document will rarely stand as equivalent sources. The document, having been made before the dispute arose, is unaffected by the distortions that litigation subsequently introduces.^[19]

E.3.4 Credibility, reliability and the assessment of witnesses

113 In assessing whether to accept a witness’s evidence, the Court will have regard to the internal coherence of that witness’s account, its consistency with the evidence of other witnesses and with undisputed facts, the general credit of the witness including impressions from demeanour, any relevant infirmities or vulnerabilities, and the inherent probability or improbability of the account in question. Evidence given against a witness’s apparent interest, or which is inherently probable in light of the surrounding circumstances, carries particular weight in this assessment.^[20]

114 Credibility, which concerns whether a witness is honest and genuinely attempting to tell the truth, is a distinct question from reliability, which concerns whether their account of a particular event is accurate. A witness may be entirely truthful and yet give evidence about a specific conversation that is substantially inaccurate, because their recollection has been distorted by the passage of time, the pressure of litigation, or unconscious self-interest, without any deliberate intent to mislead.^[21]

115 A court possesses no special capacity to determine from a witness’s manner of giving evidence alone, whether they are telling the truth. The surest guide to credibility and reliability is the comparison of the witness’s account with objective fact, documentary evidence, and the inherent probabilities. Separately, the rejection of a witness’s evidence on a particular matter does not of itself establish the truth of the contrary proposition. While inferences may, in appropriate circumstances, arise to support an alternative state of affairs, the Court must be cautious about treating its disbelief of one account as constituting affirmative proof of the other.^[22]

116 Witnesses should not be assessed in binary terms as wholly credible or wholly lacking in credibility. The proper approach is to assess each witness’s evidence issue by issue, by reference to its coherence, its consistency with the objective materials, and its inherent plausibility on the specific matter in question. A witness who gives reliable evidence on one aspect of a dispute may give unreliable evidence on another.^[23]

E.3.4 Surrounding context and inherent plausibility

117 Surrounding circumstances, undisputed facts, the apparent logic of events, and the commercial context are all relevant to the assessment of what was most probably said or agreed. In commercial cases, an account that lacks commercial logic, or that describes an agreement a reasonable commercial party would be unlikely to have accepted, will be scrutinised with corresponding care.^[24]

118 The parties’ conduct after the alleged conversation may be relevant both to whether an agreement was formed and to its terms. Where a party who asserts a contractual right has behaved in a manner inconsistent with holding that right, or where the claimed agreement has left no trace in subsequent dealings, those matters weigh against the account alleged. Conversely, consistent post-contractual conduct may provide corroborating support.^[25]

119 The absence of any documentary record of a significant agreement in a commercial context where one might ordinarily be expected, is itself a matter bearing on the inherent plausibility of the alleged conversation. It does not preclude a finding that the agreement was made, but is a consideration to be weighed in the overall assessment.

E.3.5 Failure to call evidence and resolution of the onus

120 Where a party fails to adduce evidence that is both available and relevant to a material fact in issue, without offering any adequate explanation for that failure, the Court may infer that the evidence, if produced, would not have assisted that party’s case.^[26] That inference does not constitute affirmative proof of the opposing case, but it reinforces the inadequacy of the evidence actually adduced.

121 Corroboration of a witness’s account of a conversation, whether by another witness, a contemporaneous document, or subsequent conduct, is not a legal requirement. Its absence may nonetheless bear on the Court’s assessment of whether the standard of proof is met.

122 A trial judge is not required in every case, to make a positive finding in favour of one party or the other. Some issues, particularly where the matter reduces to one witness’s account against another’s and neither version is sufficiently persuasive, cannot be resolved on the evidence available. In such circumstances, the proper course is to determine the issue on the basis that the party bearing the onus has failed to discharge it. It is not necessary to choose between the two accounts where neither has been established to the requisite standard.^[27]

E.4 Consideration

E.4.1 The central question

123 The question whether the alleged representations were made turns on the assessment of oral evidence given about a telephone conversation of less than five minutes that occurred almost two years before trial. The applicable principles are set out in Section E.3 above. In brief, the onus rests upon Mr Oman to establish on the balance of probabilities, with the precision required by the nature of the allegation, that Mr Mondous made the representations attributed to him. Given the gravity of what is alleged, namely, an unequivocal undertaking by the principal of a major lender to surrender personal recourse against a guarantor for a substantial debt, the strength of the evidence needed to generate the requisite satisfaction is correspondingly high.

124 As the authorities make clear, the Court’s task is not simply to choose between two competing witnesses. The proper approach is to assess the oral evidence of both witnesses by reference to the contemporaneous documentary record, the inherent probabilities, and the conduct of the parties before and after the alleged conversation.

125 Having undertaken that assessment, I am not satisfied, on the balance of probabilities, that Mr Mondous made any representation, assurance or promise to the effect that Monland would not pursue Mr Oman personally under the guarantee. I have reached that conclusion for the following reasons.

E.4.2 The absence of contemporaneous corroboration

126 The most significant feature of this case is the complete absence of any contemporaneous record of the alleged assurance. If Mr Oman had received during that telephone call, an unequivocal undertaking or assurance from the principal of his major lender that he would not be pursued personally on a debt that could potentially run to millions of dollars, it would be expected that a person of his commercial experience would have recorded that assurance in some form, whether by return email, text message or a file note, at or shortly after the time it was given. However, he did not. There is no email or text message sent to Mr Mondous on 14 March 2024 or in the days immediately following, confirming the assurance or even alluding to it. Nor is there any contemporaneous note of any kind recording such an assurance. The guarantee was contained in a formal legal agreement that had been amended and augmented on prior occasions. A guarantor, having just received an oral release from a multi-million dollar personal obligation, would be expected to seek written confirmation or, at the very least, make some contemporaneous record protecting his position.

127 Mr Oman accepted, in cross-examination, that on other occasions he had recorded significant conversations with Mr Mondous in subsequent emails.^[28] On this occasion, which on his account was the occasion on which he received the most important assurance of the entire transaction, he sent nothing. The absence of any such record is a powerful indicator that the alleged assurance was not given.

E.4.3 The late emergence of the allegation

128 Mr Oman’s account that the alleged representations were made by Mr Mondous during a conversation on 14 March 2024 did not emerge until late October 2025.

129 On 29 October 2025 Mr Oman filed his witness outline.

130 The witness outline stated that it was anticipated that Mr Oman would give evidence to the effect as set out in the outline and ‘as recorded in his affidavit sworn (sic) 5 October 2024 in this proceeding’.^[29]

131 Mr Oman’s affidavit affirmed on 5 October 2024 was filed in response to a summary judgment application.

132 In that affidavit Mr Oman stated:

In February 2024 Orbal received another offer for $13,000,000 for the quick purchase of Plumpton which included a deposit of $1,300,000 placed in the agents account, an offer I could not entertain immediately until the due diligence period from the previous offer for $20,600,000 expired. I informed Kameel of the new offer. In March when the First offer’s due diligence period was about to end that Purchaser requested an extension of the due diligence period. However, the Purchaser for $13,000,000 was putting pressure to sign the unconditional heads of agreement. I spoke with Kameel regarding the Plumpton sale and the latest developments, and his strong advice and recommendation was to sign the unconditional $13,000,000 contract. I asked Kameel if he was going to pursue me personally regarding the loan facility and he told me that it was not his intention to do so and it never was. In reliance on Kameel’s assurance that he would not pursue me personally, I executed the contract. Had I been aware that I was at risk of being pursued personally I would have held out for the prospect of the $20,600,000 sale as that sum would have been sufficient to save me from Bankruptcy where the $13,000,000 was not.^[30]

133 As is apparent, Mr Oman’s statement in his affidavit of 5 October 2024 did not refer specifically to a telephone call between himself and Mr Mondous on 14 March 2024 during which the alleged representations were made.

134 Similarly, Mr Oman’s defence and counterclaim filed on 7 October 2024^[31] and his amended defence and counterclaim filed on 7 March 2025^[32] did not refer to a telephone call between Mr Oman and Mr Mondous on 14 March 2024 during which the alleged representations were made. In fact the date on which the alleged conversation or conversations occurred was unstated.

135 Both those documents relevantly stated:

4 As to paragraph 4, the Defendant admits paragraph 4 thereof but further says that the Deed of Amendment was subsequently varied orally by representations and/or a number of discussions between Kameel Mondous (Mondous), a director of the Plaintiff (Monland) and the Defendant (Oman) a director of Residence Company Pty Ltd (Residence) to include the following further terms and conditions:

Particulars

(a) That Oman shall not be pursued personally with respect to any purported shortfall of the Residence debt pursuant to the Loan Facility Agreement.

...

136 Mr Oman’s further amended defence and counterclaim filed on 25 October 2025^[33] inserted the following paragraph into the pleading:

10G. On or about 14 March 2024, Kameel, on behalf of the Plaintiff, represented to the Defendant that:

(a) the Plaintiff wished for the Plumpton Property to be sold urgently, and as such the Plaintiff wished for Orbal to sell the Plumpton Property for the amount of $13 million unconditionally, rather than wait for an extended period of time to allow Cleveland to complete its due diligence in anticipation of executing a contract to purchase the Plumpton Property for the amount of $20.6 million;
(b) that the Plaintiff had no intention of ever recovering outstanding debts from the Defendant personally, provided that Orbal would act promptly to sell the Plumpton Property for $13 million; and
(c) after the Defendant raised the fact that a sale of the Plumpton Property for the amount of $13 million would expose him to liability under his personal guarantee to the Plaintiff, Kameel, in substance, assured him that the Plaintiff would not pursue him personally if Orbal moved quickly to sell the Plumpton Property unconditionally for the amount of $13 million

(the Plumpton Representations).

137 Mr Oman’s witness outline filed on 29 October 2025 contained the following paragraph.^[34]

On or about 14 March 2024, Mr Oman spoke to Kameel and asked him in substance whether, if Orbal accepted the Istvan offer for the Plumpton Property, Monland would pursue him personally for whatever monies were owed to it. Kameel Mondous then stated words to Mr Oman to the effect that:

(a) Monland wished for Orbal to sell the Plumpton Property;

(b) Monland’s preference was for Orbal to accept the offer to sell the Plumpton Property for $13 million;

(c) it was never Monland’s intention to pursue Mr Oman personally; and

(d) if Mr Oman took all necessary steps to sell the Plumpton Property for the amount of $13 million, Monland would not seek to enforce any personal guarantee which Mr Oman had executed.

138 The timing and context of the allegation’s emergence gives rise to a well-founded concern, consistent with the caution articulated in Watson,^[35] that it is a reconstruction shaped by the demands of litigation rather than an accurate recollection of what was in fact said. The principles discussed in Section E.3.2 above apply with particular force: where a dispute has arisen and litigation is on foot, the reconstruction of past events in a manner favourable to the witness’s interests is a known and frequently unconscious process.

139 The fact that the specific allegation, that the alleged representations were made in a conversation in March 2024, first surfaced in an affidavit filed in adversarial proceedings, rather than in any communication made before the proceedings commenced, is a matter of considerable weight. So too is the fact that reference to the conversation taking place on 14 March 2024 only appeared in documents filed by Mr Oman in late October 2025.

E.4.4 Inconsistent conduct after 14 March 2024

140 Mr Oman’s conduct in the period between 14 March and late July 2024 is inconsistent with a person who genuinely believed that his personal liability had been extinguished.

141 During that period Mr Oman did not ask that Monland confirm in writing what he now says was an unequivocal oral assurance. Nor did he instruct his solicitors to document or act upon any such assurance. The absence of any action consistent with holding a right to immunity from personal enforcement, further undermines his account.

142 Similarly, during that period, Mr Oman was actively seeking to arrange refinancing to reduce Monland’s exposure and forwarded refinancing proposals to Mr Mondous. That conduct is consistent with Mr Oman understanding that he remained personally liable under the guarantee and seeking to manage that exposure.

143 The transfer of the Slovenian Property in July 2024 is also inconsistent with the alleged assurance having been given. If Mr Oman genuinely believed, as a result of the 14 March 2024 conversation, that Monland had represented that it would not pursue him personally, there would have been no occasion, four months later, to execute a deed transferring the Slovenian Property to Ms Sabec for no consideration. That property had been provided by Mr Oman as security under the Loan Facility Agreement and the Deed of Forbearance. Mr Oman’s decision to divest himself of it precisely when Monland’s enforcement steps were becoming imminent, is most readily explained by his understanding that the guarantee remained binding, not by his confidence that it had been released.

E.4.5 The July 2024 emails

144 Mr Oman places considerable reliance on his email to Mr Mondous of 19 July 2024, in which he stated that Mr Mondous had ‘stated on many occasions that it was not [his] intention to come personally as this would mean leaving my family homeless.’ He submits that Mr Mondous’s failure to deny that statement in his reply email of 22 July 2024 amounts to an admission.

145 I do not accept that submission for several reasons.

146 First, by the time the email was sent, Monland had already formally demanded that Mr Oman make payment of the amount of $10,881,829.08. The email cannot be characterised as a contemporaneous corroboration of what was said in March 2024.

147 Secondly, the statement refers to assurances allegedly given by Mr Mondous on many occasions rather than specifically in the 14 March 2024 conversation, and that aspect of the allegation was not put to Mr Mondous in cross-examination. Further, if true, that would mean that the assurance was not specific to the events of 14 March 2024 and was not linked to the sale of the Plumpton Property in the way Mr Oman’s defence alleges. The pleaded case is that the representations were made on 14 March 2024 in direct response to a question about the personal guarantee in the context of the Istvan offer, and that it was that specific assurance which induced Mr Oman to cause Orbal to accept the Istvan offer. A representation said to have been given on many prior occasions, independently of the sale decision, cannot have operated as an inducement to accept the Istvan offer on that day. The email is therefore inconsistent with the case Mr Oman seeks to make, and lends no support to the specific allegation that representations were made on 14 March 2024 in the terms and context alleged.

148 Thirdly, and of some significance, Mr Mondous’s reply of 22 July 2024, while lengthy and not specifically directed to the alleged assurance, was in its overall tenor and content, consistent with Mr Mondous treating Mr Oman as bound by his personal guarantee. It stated that Monland’s solicitors ‘will be looking at all avenues to recoup Monland’s outstanding debt’ and that ‘Monland will pursue all its right to be paid in full’. Had Mr Mondous previously given an assurance of the kind alleged, one would expect his reply to have acknowledged some version of that earlier position. It did not. The reply proceeded on the footing that Mr Oman’s personal liability was live and enforceable. A failure to deny a specific assertion in adversarial correspondence does not, in such circumstances, constitute an admission.

E.4.6 The commercial context does not support Mr Oman’s account

149 Mr Mondous gave evidence that the topic of Mr Oman’s personal guarantee was not discussed on 14 March 2024 because both he and Mr Oman then anticipated that the proceeds from the secured properties would be sufficient to cover Monland’s outstanding debt, and that there was therefore no occasion for the question of personal recourse to arise. That evidence aligns with the documentary record and with Monland’s contemporaneous conduct in not appointing receivers over the Plumpton Property, which is consistent with a view that the secured properties provided adequate cover.

150 The commercial implausibility of the alleged representations, however, does not depend solely on accepting Mr Mondous’s evidence about the parties’ state of mind as to the risk of a shortfall. If, as Mr Mondous said, both parties then believed there was sufficient equity in the secured properties to cover the debt, the question of personal liability simply would not have arisen. If, on the other hand, as Mr Oman alleged, both parties were by that point aware that a shortfall was a real risk, it is implausible that Mr Mondous would choose that moment to surrender Monland’s only remaining recourse for that shortfall, gratuitously, without consideration, without legal advice, and without any written record. On either version, the alleged representations make no commercial sense.

151 Against that background, the proposition that Mr Mondous voluntarily surrendered Monland’s right to personal recourse against Mr Oman, in the course of a brief telephone call, is inherently improbable.

152 A more probable explanation for Mr Oman’s reversal between 3:18 pm and 4:13 pm on 14 March 2024, lies not in any assurance given by Mr Mondous but in the objective circumstances Mr Oman then faced. He knew that the Millbrook default notice expired on 15 March 2024, the following day. He knew that if the Istvan offer was not accepted by 5.00 pm on 14 March 2024, Orbal faced the near certain prospect of a mortgagee sale at a price that may well have been lower than the Istvan offer, given the independent vacant possession valuation of $10.88 million.

153 Mr Oman also knew that the Cleveland offer had not progressed as expected. As at that date, Cleveland had not paid the $50,000 exclusive dealing fee required under the terms sheet, had not paid the $2 million deposit that was to follow the due diligence period, and had requested an extension of the due diligence period without offering any assurance of its capacity to proceed. There was, as at that date, no evidence of confirmed funding, no completed due diligence, and no concrete indication that Cleveland was ready, willing and able to proceed at $20.6 million. On the information available as at 14 March 2024, the Cleveland offer did not represent a certain or even probable alternative to the Istvan offer. At best, it was an uncertain prospect that had not advanced beyond preliminary negotiations. By contrast, Mr Oman knew that Istvan was ready, willing and able to proceed and that its offer was backed by a substantial deposit.

154 This explanation is reinforced by Mr Oman’s failure to disclose the Millbrook default deadline to Mr Mondous. If his conversation with Mr Mondous was the decisive factor in his change of position, there would have been no reason to conceal the imminence of the mortgagee sale deadline. The concealment suggests that Mr Oman understood the deadline to be the operative pressure driving his decision, and that any conversation with Mr Mondous was peripheral to it.

E.4.7 Assessment of the witnesses

155 The findings set out above rest primarily on the contemporaneous documentary record, the inherent probabilities, and the conduct of the parties, consistent with the approach described in Section E.3. The following observations on the witnesses supplement, but do not supplant, that analysis.

E.4.7.1 Mr Oman

156 Mr Oman was an intelligent and articulate witness who gave evidence in direct terms and made appropriate concessions, including in relation to the Merkon security arrangement. Taken in isolation, his demeanour could not be said to be that of a witness who was plainly untruthful.

157 However, his credit was undermined by a number of matters that emerged at trial.

158 First, he failed to disclose to Mr Kelemen, Mr Mondous, Millbrook or the Millbrook valuer that Ms Viering held indefinite occupancy rights over the farmhouse on the Plumpton Property pursuant to a 1997 Family Court order. That non-disclosure was deliberate, concerned information directly material to the value of the property, and had concrete commercial consequences, as the property was ultimately sold for $500,000 less than the agreed price because of Ms Viering’s refusal to vacate.

159 Secondly, he caused Orbal to guarantee Residence Company's borrowings from Monland and to agree to grant a mortgage over the Plumpton Property without informing Ms Viering or obtaining her consent to that course.

160 Thirdly, he concealed from Mr Mondous the existence of a security interest granted to Merkon over Orbal’s interest in the Plumpton Property. Mr Oman acknowledged this in his evidence and apologised to Mr Mondous. While the apology was to his credit, his underlying conduct was not.

161 Fourthly, he failed to disclose to Mr Mondous the imminence of the Millbrook default deadline, which expired on 15 March 2024.

162 Fifthly, and most significantly, when enforcement became imminent in July 2024, Mr Oman executed a notarial deed purporting to transfer the Slovenian Property, which he had agreed to provide as security, to his partner Ms Sabec for no consideration. As observed above, that conduct is itself inconsistent with any genuine belief that the guarantee had been released by Mr Mondous’s assurances on 14 March 2024. Beyond its relevance as a matter of credit, it reflects the conduct of a person who understood that his personal liability remained binding and who sought to frustrate the enforcement of it.

163 Taken together, these matters reveal a pattern of conduct involving the concealment of material information from persons whose decisions it would affect, and the taking of steps to remove assets from the reach of an enforcing creditor. That pattern reflects adversely on Mr Oman’s reliability as a witness.

E.4.7.2 Mr Mondous

164 Mr Oman sought to undermine Mr Mondous’s credit by reference to two matters: the overstated debt figure in the August 2025 affidavit, and alleged evasiveness in his evidence about his dealings with Mr Kelemen.

165 As to the affidavit, Mr Mondous accepted that it overstated Mr Oman’s debt by approximately $3.25 million due to a linking error in a spreadsheet that he became aware of in October 2025, and that he did not take formal steps to correct the affidavit before trial. That was an unsatisfactory state of affairs. An error of that magnitude in a sworn affidavit should have been corrected promptly upon discovery. I accept, however, that the error was inadvertent, that Mr Mondous informed his solicitors upon discovery and provided an updated spreadsheet, and that he believed the necessary correction would be made. Critically, the error related to a collateral matter and did not affect Mr Mondous’s evidence on the central issue of what was said on 14 March 2024.

166 As to the allegation of evasiveness, I have reviewed the relevant portions of the transcript. Mr Mondous was at times careful and deliberate in his answers, which is not uncommon in witnesses being cross-examined by experienced senior counsel. I did not observe him to be evasive or to be avoiding a true answer.

167 On the critical issue of the 14 March 2024 conversation, Mr Mondous was direct and consistent. His evidence that the topic of the personal guarantee was not discussed, because both parties then anticipated that the secured properties would provide sufficient recovery, was coherent and commercially explicable. I found Mr Mondous to be a truthful and reliable witness on the central issues in this proceeding.

E.4.7.3 Mr Kelemen

168 Mr Kelemen had a prior relationship with Mr Mondous and was involved in procuring the Istvan offer. Mr Oman attacked his credit on the basis that he gave false evidence about a Biggin & Scott mortgagee auction being advertised on the internet by 14 March 2024.

169 Mr Kelemen was not a party to the telephone conversation of 14 March 2024 between Mr Mondous and Mr Oman. He could not therefore give evidence on the central factual question in the case. The significance of the attack on his credit is accordingly limited. Even if his evidence on collateral matters is found to be unreliable, that does not advance Mr Oman’s case on the question of what was said during the call, which must be resolved by reference to the evidence of the two participants.

170 Mr Oman demonstrated that Mr Kelemen’s evidence about the internet advertisement of a Biggin & Scott mortgagee auction by 14 March 2024 was incorrect, in that the documentary evidence showed that Millbrook only engaged that agency in April or May 2024. That error, however, concerned a peripheral matter. I have given his evidence on collateral matters little weight, and it has no bearing on my assessment of the central issue.

E.4.7.4 Mr LaPenta

171 Mr LaPenta is the sole director and shareholder of Cleveland. He gave evidence that Cleveland genuinely intended to purchase the Plumpton Property for $20.6 million for a solar farm project and would more likely than not have completed the purchase had due diligence been extended.

172 I did not find Mr LaPenta to be a credible witness. His evidence was internally inconsistent and at times bordered on the implausible. He described the $20.6 million price as simultaneously just a number, just an estimation,^[36] and yet maintained that Cleveland would have paid it even after receiving a formal valuation of $10.88 million. That evidence is simply not credible.

173 The objective evidence demonstrates that Cleveland was not a serious purchaser. It paid neither the $50,000 exclusive dealing fee nor the $2 million deposit required under the terms sheet. It conducted no meaningful due diligence. Its bank account held less than $351 as at the end of March 2024. The letter from Lighthouse Finance offering to fund 75% of the purchase price was subject to numerous conditions that were never satisfied, including approval of an EPC, planning approvals, and proof of capacity.

174 Mr LaPenta’s evidence that Cleveland would have paid $20.6 million for a property worth $10.88 million on a vacant possession basis, without any planning approvals for a solar farm, without having conducted any due diligence, and with finance that was subject to conditions it had no capacity to satisfy, was fanciful.

175 I am satisfied that the Cleveland offer was not a genuine commercial proposition capable of completion. It was, at best, a highly speculative arrangement that Cleveland was unable and unwilling to pursue.

176 As discussed above, the relevance of his evidence on the issue of whether the alleged representations were made is confined to the state of the Cleveland offer as at 14 March 2024 and, specifically, to what was then known about Cleveland’s willingness and ability to proceed. On that question, his evidence did not establish that the offer was a firm or reliable commercial proposition as at that date, for the reasons identified above.

E.4.8 Conclusion on the alleged representations

177 For the reasons set out above, I am not satisfied, on the balance of probabilities, that Mr Mondous made any representation, assurance or promise to Mr Oman during the telephone conversation of 14 March 2024 that Monland would not pursue him personally under the guarantee, or to any similar effect.

178 Mr Oman has not discharged his onus of establishing, to the requisite degree, that the alleged representations were made. His defence and counterclaim accordingly fail at the threshold.

F. PROMISSORY ESTOPPEL AND MISLEADING OR DECEPTIVE CONDUCT

179 Having found that the alleged representations were not made, it is strictly unnecessary to deal with the question whether, if they had been made, they would have given rise to a promissory estoppel or a cause of action for misleading or deceptive conduct. However, given the detailed submissions advanced by both parties on these issues, it is appropriate to address them on an alternative basis.

180 This issue comprises two related but analytically distinct causes of action: promissory estoppel operating as a defence to Monland’s claim or as the foundation for relief on Mr Oman’s counterclaim; and misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth) sch 2 (ACL) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).

181 Each requires consideration of three matters: whether the alleged representations, if made, were of a character sufficient to found the relevant cause of action; whether Mr Oman relied upon them; and whether he suffered the detriment or loss required under each doctrine.

F.1 Submissions

F.1.1 Plaintiff’s submissions

182 Monland submitted that even if the alleged representations had been made, Mr Oman’s case failed at each of three levels: the representations were not of a character sufficient to found the causes of action; the evidence fell below the level of the pleaded case; and no detriment or loss of the kind alleged was established.

F.1.1.1 Character of the representations

183 Monland submitted that the alleged representations were, on Mr Oman’s own evidence, statements of present and past intention only. The critical passage in Mr Oman’s evidence was that Mr Mondous said it was not his intention to pursue Mr Oman personally and that it had never been his intention.^[37] Statements in those terms relate to the maker’s current and previous state of mind. They are not, in their terms, a promise as to future conduct. It is not the same as saying ‘Monland will never pursue you personally’ or ‘if you sell to Istvan, we will not enforce the guarantee.’

184 Monland submitted that the evidence adduced by Mr Oman did not reach the level of the pleaded case. What was pleaded, was that a statement was made that if Orbal sold the Plumpton Property unconditionally for $13 million, Monland would never pursue Mr Oman personally and that a common understanding or convention to that effect had arisen. Mr Oman’s evidence, however, was that Mr Mondous made a statement of present and past intention, without linking Orbal’s acceptance of the Istvan offer with Monland’s future conduct, and without any promise or assurance as to what Monland would or would not do in the future. Monland submitted that Mr Oman’s evidence had simply not come up to proof.

185 Monland further submitted that, since the representations were at most statements of present intention, honestly held at the time they were made, they could not constitute misleading or deceptive conduct merely because the promisor later changed his mind or acted inconsistently with that intention.^[38] For the same reason, s 4 of the ACL was not engaged as it addresses representations with respect to a future matter, and a statement of present intention is not such a representation. Even if it were, Monland submitted that since Mr Mondous’s evidence was that he made no such representation, there was no evidentiary foundation upon which the s 4 reverse onus could operate.

F.1.1.2 Detriment and the viability of the Cleveland offer

186 Monland submitted that no detriment had been established because the Cleveland offer was not a genuine commercial proposition capable of completion as at 14 March 2024. It submitted that the relevant comparison for detriment purposes is between the outcome achieved and the outcome that would realistically have been achieved absent the representation. The Cleveland offer could not represent a realistic forgone opportunity because Cleveland had not advanced any money by way of deposit or otherwise and had no demonstrated capacity to complete the transaction.

187 Monland pointed to the following matters as at 14 March 2024. Cleveland had an unconditional obligation under the terms sheet executed on 15 January 2024 to pay an exclusive dealing fee of $50,000 on that date. It had not done so. Mr LaPenta gave evidence in cross-examination that Cleveland did not have the money to pay that fee without the external finance from Lighthouse Finance, which was subject to multiple conditions, none of which had been satisfied. Cleveland had paid no part of the $2 million deposit that would fall due at the end of the due diligence period. It had conducted no meaningful due diligence. Lighthouse Finance’s indicative funding letter was subject to conditions including planning approvals, an executed EPC agreement and proof of capacity, none of which was in prospect.

188 Monland further submitted that the true cause of Mr Oman’s change of position on 14 March 2024 was not any representations by Mr Mondous, but the objective circumstances he faced, namely the Millbrook default notice which required payment of $1.26 million by 15 March 2024, and that such notice had been issued after Millbrook had already engaged Biggin & Scott Land on 4 March 2024 to assess the prospect of a mortgagee sale. The independent vacant possession valuation of the Plumpton Property dated 10 February 2024 was $10.88 million,^[39] which was well below the Istvan price of $13 million. In those circumstances, Monland submitted, accepting Istvan’s offer was not a detriment but the best available commercial outcome, and it made no difference what, if anything, Mr Mondous had said about the personal guarantee.

189 Monland submitted that the Millbrook threat was not mere rumblings. Millbrook had raised the prospect of a mortgagee sale as early as 19 January 2024, had obtained an independent valuation in early February 2024, had issued a formal notice of default on 14 February 2024, and had been in contact with a mortgagee real estate specialist from 4 March 2024. This was a serious and imminent threat that Mr Oman had not disclosed to Mr Mondous, and it provided a complete explanation for his reversal on 14 March 2024, independent of anything that was said during the telephone call.

F.1.2 Defendant’s submissions

190 Mr Oman submitted that the alleged representations gave rise to both a promissory estoppel and a cause of action for misleading and deceptive conduct, and that each cause of action independently entitled him to relief.

F.1.2.1 Promissory estoppel

191 Mr Oman submitted that the representation, if accepted as made, satisfied the requirements of promissory estoppel outlined by Brennan J in Waltons Stores (Interstate) Ltd v Maher (Walton Stores).^[40] He submitted that in context, the words spoken by Mr Mondous were not merely an expression of present inclination but a clear and direct assurance in response to a direct question, intended to give Mr Oman comfort about his personal exposure, and conveying unambiguously that Monland would not pursue him under the guarantee if Orbal sold the Plumpton Property to Istvan.

192 Mr Oman submitted that the representations had to be assessed not in isolation but in their full context: they were made in direct response to an explicit question that proceeded from a decision of great personal financial consequence; Mr Mondous had seen the documents regarding both offers and knew what was at stake; the words could only have been understood, in that context, as an assurance directed to Mr Oman’s personal exposure; and the subsequent reversal of position within four months, with no explained change of circumstances, supports the inference that Mr Mondous understood the assurance he had given when he gave it. The Court, it was submitted, must assess what was conveyed to a reasonable person in Mr Oman’s position having regard to all surrounding circumstances, not merely the literal content of the words.

193 On the question of detriment, Mr Oman submitted that the concept of detriment for the purposes of equitable estoppel is not narrow or technical. He relied on the statement of the majority in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (AFSL v Hills),^[41] that detriment need not consist of quantifiable financial loss and must be approached as part of a broad inquiry into whether resiling would be unconscionable in all the circumstances. He submitted that the detriment was his exposure to enforcement of the personal guarantee and that, if Monland were permitted to resile, the minimum equity required to avoid that detriment was an order or declaration that the guarantee could not be enforced against him personally.

194 Mr Oman further submitted that, in circumstances where he had already acted to his detriment, by causing Orbal to accept the Istvan offer before any purported notice of resiling was given, any promissory estoppel must be treated as permanent rather than suspensory. The loss of the opportunity to pursue the Cleveland transaction was irreversible, and the parties could not be restored to their pre-representation position. In support of these contentions Mr Oman relied on Commonwealth v Verwayen (Verwayen),^[42] and the analysis of detriment and the extent of the equity in that case.

F.1.2.2 Misleading or deceptive conduct

195 Mr Oman submitted that the alleged representations constituted misleading or deceptive conduct in contravention of s 18 of the ACL and s 12DA of the ASIC Act, and that s 4 of the ACL^[43] operated to shift the evidential burden to Monland to establish that there were reasonable grounds for any representations as to a future matter.

196 Mr Oman submitted that the representations related to a future matter, namely whether Monland would pursue him personally under the guarantee, and that by reason of s 4(2) of the ACL, Monland was taken not to have had reasonable grounds for making them unless evidence to the contrary was adduced. Monland elected not to lead any such evidence, and the inference arises that no reasonable grounds existed. He submitted that this was reinforced by the fact that within four months Mr Mondous caused Monland to do a complete volte-face by issuing a personal guarantee demand with no change of circumstances advanced to justify it. That rapid reversal, he submitted, supported the inference that Mr Mondous either had no intention of complying with the assurance when he gave it, or was recklessly indifferent as to whether he would comply with it.^[44]

197 Mr Oman relied on the passage in Wheeler Grace & Pierucci Pty Ltd v Wright (Wheeler Grace),^[45] where Lee J held that s 52 of the Trade Practices Act 1974 (Cth) (the predecessor provision) was not confined to circumstances constituting an express representation, and that a positive unqualified statement by a corporation may be misleading if the circumstances show that a qualification was required or the possibility of non-fulfilment should have been disclosed. He also relied on the statement of Toohey J in James v Australia and New Zealand Banking Group Ltd (James v ANZ),^[46] that a promise or prediction may contain an implied representation that the maker has a present intention to make good the promise and the means to do so, so that a contravention arises if that implied representation is false.

198 On causation and loss, Mr Oman submitted that it was not necessary for the misleading conduct to be the sole or dominant cause of his loss; it sufficed that it was a cause or materially contributing factor. He submitted that accepting the Istvan offer rather than pursuing the Cleveland transaction constituted the relevant detriment, and that the loss flowed from his reliance on the representations.

F.2 Applicable legal principles

F.2.1 Promissory estoppel

199 The requirements for promissory estoppel were stated by Brennan J in Waltons Stores^[47] as follows. The plaintiff must establish that: (1) the plaintiff assumed that a particular legal relationship then existed or expected that a particular legal relationship would exist between the parties, and in the latter case that the defendant would not be free to withdraw from that expected legal relationship; (2) the defendant induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on that assumption; (4) the defendant knew or intended the plaintiff to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. Each element must be established.

200 The doctrine, as it operates in Australian law following Verwayen^[48] is concerned with preventing a party from departing unconscionably from an assumption of fact, law or legal relationship that it has induced another to adopt. The equity, once established, extends to what is necessary to prevent the detriment but no more.^[49]

201 Detriment is not to be understood narrowly. The requirement of detriment must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.^[50] The detriment that is material for the purposes of the doctrine is the detriment that the promisee will suffer if the promisor is permitted to resile, that is, the consequence of the assumption not being fulfilled, not merely the loss flowing from the act of reliance itself.

F.2.2 Misleading or deceptive conduct

202 Section 18 of the ACL prohibits conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive. Section 12DA of the ASIC Act contains a corresponding prohibition in relation to financial services. The test is objective: whether the conduct, viewed from the perspective of the class of persons to whom it is directed, has the quality of being misleading or deceptive.

203 A representation as to a future matter, including a statement of present intention to do or not do something, may constitute misleading or deceptive conduct if, at the time the representation was made, the maker did not genuinely hold the stated intention, or made the statement recklessly without reasonable grounds: s 4 of the ACL and s 12BB of the ASIC Act provide that, where a party has made a representation with respect to a future matter, that party is taken not to have had reasonable grounds for making it unless evidence to the contrary is adduced. The section does not reverse the onus of proof of contravention, but it does require the party making the representation to lead some evidence of the basis for the belief they claimed to hold.

204 Where a representation is honestly held at the time it is made, it is not rendered misleading or deceptive merely because the maker subsequently changes its mind or fails to carry out the stated intention.^[51] However, a representation as to present intention may carry with it an implied representation that the maker has a genuine intention and the present means or capacity to carry it out. If either of those implied matters is false at the time of the representation, a contravention may arise.^[52]

205 Where conduct in contravention of these provisions causes loss or damage, the person who suffered the loss or damage may recover it under s 236 of the ACL or s 12GF of the ASIC Act. Causation does not require the misleading conduct to be the sole or dominant cause of the loss; it suffices that it is a cause or a material contributing factor.^[53]

F.3 Consideration

F.3.1 The character of the alleged representations: promissory estoppel

206 The first question in respect of the estoppel claim is whether the alleged representations, if made in the terms described by Mr Oman, were of a character sufficient to satisfy the first and second elements of Brennan J’s formulation in Waltons Stores.^[54] Those elements require that the promisor induced the promisee to adopt an assumption that a particular legal relationship would exist between the parties and that the promisor would not be free to withdraw from it.

207 On Mr Oman’s own evidence, Mr Mondous told him that it was not, and never had been, Monland’s intention to pursue him personally. That is, in form, a statement of present and past state of mind. It is not, in terms, a promise or commitment as to future conduct nor does it say that Monland will not exercise its rights under the guarantee, or that if Orbal sells to Istvan for $13 million, Monland will never pursue Mr Oman personally. The distinction between a statement of present intention and a promise as to future conduct is legally material.^[55]

208 A statement of present intention does not, of itself, induce an assumption that the maker will not be free to withdraw from a future legal relationship. Nor is it unconscionable to act inconsistently with a present intention that has been communicated. The very nature of a statement of intention is that it is liable to change. As was observed in the course of argument, the distinction is between ‘I do not presently intend to pursue you’ and ‘I will never pursue you.’ On Mr Oman’s own evidence, what he was told was the former, not the latter.

209 Mr Oman submitted that the representations must be read in context, and that in their context they conveyed unambiguously that Monland would not pursue him personally in the event of a shortfall. That submission would have some force in circumstances where the question was posed explicitly and directly against the background of a known risk of a shortfall. However, even giving the words their most generous contextual reading, the first and second elements of the Brennan J formulation^[56] are not satisfied unless the representations induced an assumption that Monland would not be free to change its position. A statement of present intention, however clearly expressed, does not of itself carry that meaning.

210 It follows, that Mr Oman’s case encounters a significant difficulty at the threshold of the estoppel claim. The representations, as described in evidence by Mr Oman, were not sufficient to induce the assumption that the first two elements require. The pleaded case required a linkage between Orbal selling to Istvan and Monland refraining from enforcement. The evidence given was a bare statement of present and past intention that contained neither the linkage nor the forward-looking commitment.

F.3.2 The character of the alleged representations: misleading or deceptive conduct

211 For the misleading or deceptive conduct claim, a statement of present intention is capable of contravening s 18 of the ACL if the maker did not genuinely hold that intention when the statement was made, or if the statement carried with it an implied representation that was false.^[57]

212 On the primary finding that the representations were not made, the statutory claim fails at the threshold. Even on the assumption that the representations were made in the terms Mr Oman described, the claim encounters further difficulty. The representations, on Mr Oman’s own evidence, were statements of present and past intention. Monland’s evidence, which has been accepted on the primary issue, is that Mr Mondous held no such intention because the topic was never discussed. On any view, there is no basis for finding that Mr Mondous made a statement which, at the time it was made, he knew or believed to be false or as to which he was recklessly indifferent.

213 As to s 4 of the ACL, Monland elected not to adduce evidence of reasonable grounds because its case was that no representations as to a future matter were made. The s 4(2) reverse burden operates only where a representation as to a future matter has first been established. Since the primary finding is that no such representations were made, the s 4 argument does not arise. Even if it did, the absence of evidence from Monland on this point would need to be weighed against the totality of the evidence, including the primary finding as to Mr Mondous’s credibility and the commercial context, before an adverse inference could be drawn.

F.3.3 Reliance

214 Assuming, contrary to the finding above, that the representations were of a character sufficient to found the estoppel, the question of reliance arises. The third and fourth elements of Brennan J’s formulation in Waltons Stores^[58] require that Mr Oman acted, or abstained from acting, in reliance on the assumption induced by Mr Mondous, and that Mr Mondous knew or intended him to do so.

215 On Mr Oman’s account, the representations were the reason he signed the Istvan heads of agreement. He gave direct evidence that he would not have accepted the Istvan offer but for what Mr Mondous said. That account, if accepted, would establish reliance. However, the reliance case is difficult to reconcile with the evidence of the objective circumstances that Mr Oman faced on 14 March 2024, as set out below in the context of detriment. Reliance requires, not merely a subjective account of causation but a causative link that withstands scrutiny against the objective circumstances. Where a party would, on the objective evidence, have taken the same course of action regardless of any representation, that link is not established. The representation does not in any real sense induce the assumed position.

F.3.4 Detriment or loss

216 Both the estoppel and the statutory causes of action require Mr Oman to establish that he suffered detriment or loss by reason of relying on the alleged representations. Mr Oman alleges that by accepting the Istvan offer, Orbal lost the opportunity to sell the Plumpton Property to Cleveland for $20,600,000, and Mr Oman was thereby exposed to a residual personal liability under the guarantee. It is also alleged that if the guarantee is enforced, the exposure to that enforcement is itself the relevant detriment for the purposes of the estoppel.

217 Two distinct aspects of detriment and loss arise. The first is the detriment in the Verwayen^[59] sense, namely the detriment that will be suffered if the assumption is not fulfilled, which is exposure to enforcement of the personal guarantee. The second is the loss in the statutory sense, being the difference between the Cleveland price and the Istvan price, which is the loss allegedly flowing from the act of reliance. Both aspects must be considered.

218 As to the first aspect, exposure to enforcement of the guarantee: if the alleged representations had been made and relied upon, this would, in principle, constitute the relevant detriment for the purposes of the estoppel. The detriment in the Verwayen sense, is the detriment that will be suffered if the assumption is not fulfilled, which is exposure to enforcement of the guarantee. That detriment would exist regardless of whether the Cleveland offer was genuine. The viability of the Cleveland offer is therefore not determinative of whether the estoppel detriment requirement is satisfied. The estoppel detriment would be made out if Mr Oman accepted the Istvan offer in reliance on an assumption that the guarantee would not be enforced and that assumption were then departed from.

219 As to the second aspect, the alleged loss of the Cleveland opportunity: this aspect of the detriment analysis is relevant primarily to the statutory cause of action, where Mr Oman must establish actual loss or damage caused by the conduct and the amount of that loss must be ascertained. The claimed loss is the difference between a completed sale to Cleveland at $20,600,000 and the Istvan price. That claim depends entirely on the proposition that the Cleveland transaction would have been completed at that price.

220 As at 14 March 2024, the Cleveland offer was not a reliable commercial proposition. Monland’s submission to that effect is well-founded on the information then available. Cleveland had not paid the $50,000 exclusive dealing fee that fell due on execution of the term sheet on 15 January 2024. Mr LaPenta’s evidence established that Cleveland did not have the funds to pay that fee without external finance from Lighthouse Finance, which was itself subject to conditions that had not been met. No meaningful due diligence had been conducted within the period allowed. The independent vacant possession valuation of $10.88 million, roughly half the Cleveland offer price, had been obtained. The notion that Cleveland would pay $20.6 million for a property independently valued at $10.88 million on vacant possession terms, without planning approvals, without a completed EPC agreement, and without confirmed finance, was not a realistic commercial prospect.

221 Further, the objective circumstances surrounding Mr Oman’s change of position on 14 March 2024, undermine both the reliance case and the detriment case. Mr Oman knew that the Millbrook default notice expired on 15 March 2024, requiring payment of $1.26 million that Orbal had no capacity to make.^[60] He knew that Millbrook had taken active steps towards a mortgagee sale by engaging Biggin & Scott Land on 4 March 2024, some 10 days before the conversation, to market the property.^[61] He knew, or ought reasonably to have known, that Cleveland had not advanced beyond preliminary negotiations. The Istvan offer of $13 million was, in that context, the best available commercial outcome.

222 The consequence is that accepting the Istvan offer did not cause Mr Oman any measurable loss relative to the realistic alternative. The Millbrook default notice was expiring, the Cleveland offer was speculative and unfunded, and the Istvan price exceeded the independent market value. There was no better outcome that Mr Oman could realistically have achieved. The reliance element of the estoppel is therefore not established, and the statutory loss claim fails for the same reason: the alleged conduct did not cause Mr Oman to suffer any loss he would not have suffered regardless of what Mr Mondous said.

F.3.5 Conclusion on this issue

223 For the reasons set out above, and on the assumption contrary to the primary finding that the alleged representations were made, Mr Oman’s case on the second issue fails for the following reasons, taken individually and cumulatively.

224 First, the representations, as described in evidence by Mr Oman himself, were statements of present and past intention only, and did not satisfy the requirements of the first and second elements of promissory estoppel as stated in Waltons Stores.^[62] The evidence fell below the level of the pleaded case, which required a conditional linkage between Orbal’s act of acceptance and Monland’s future forbearance from enforcement.

225 Secondly, even if the representations were of a character sufficient to found an estoppel, the estoppel fails on the reliance element. On the objective evidence, Mr Oman would have accepted the Istvan offer regardless of any representations. The Millbrook default notice expired the following day, Orbal could not meet it, a mortgagee sale at a price below the Istvan offer was imminent, and the Cleveland offer was not a genuine commercial proposition. Detriment in the Verwayen^[63] sense, through exposure to enforcement of the guarantee would, in principle, have been satisfied had reliance been established, but that premise is not made out. Where a party would have acted in the same way regardless of the alleged representation, the causative link between the representation and the act of reliance is broken and the estoppel cannot be established.

226 Thirdly, the statutory causes of action fail for two further reasons. The representations, if made, were statements of present intention honestly held, and there is no basis for finding they were dishonestly made or made recklessly. In addition, and independently, Mr Oman has not established any recoverable loss. The Cleveland offer was not a genuine commercial proposition as at 14 March 2024, and acceptance of the Istvan offer, at a price above the independently assessed market value and in the face of imminent mortgagee enforcement, did not cause him any loss that he would not have suffered in any event.

227 The defence and counterclaim would accordingly fail on this alternative ground in any event.

G. DECLARATORY RELIEF CONCERNING THE SLOVENIAN PROPERTY

G.1 Background

228 The third issue is whether Monland is entitled to declaratory relief concerning the operation of clause 4(e) of Schedule 1 to the Deed of Forbearance and clause 12.3 of the Loan Facility Agreement as they relate to the Slovenian Property, or whether the maintenance of that claim in this proceeding amounts to an abuse of process having regard to the proceedings on foot in Slovenia.

229 Clause 4(e) of Schedule 1 to the Deed of Forbearance provides, in substance, that at any time during or after the forbearance period, Monland may require Mr Oman as individual guarantor to provide further security over the Slovenian Property to secure the guarantee, and that Mr Oman must provide all necessary assistance and execute any document equivalent to a Slovenian mortgage within seven days of being requested.

230 Clause 12.3 of the Loan Facility Agreement provides that each Obligor, for valuable consideration and to secure the performance of its obligations under each Finance Document, irrevocably appoints Monland as Financier, and each Authorised Officer of Monland, as attorney to do on the Obligor’s behalf and in the Obligor’s or the attorney’s name, anything the attorney considers necessary or expedient to give effect to a power or exercise of a power, or to perfect any Finance Document, including by signing any document for that purpose, while an Event of Default subsists.

231 Together these provisions address two distinct contingencies. The first proceeds on the assumption of Mr Oman’s cooperation. The second operates as Monland’s contractual protection in the event that cooperation is withheld.

232 The Slovenian proceedings were commenced by Monland on 13 September 2024, following Mr Oman’s execution on 31 July 2024 of a notarial deed by which he purported to transfer the Slovenian Property to his partner Ms Sabec for no consideration. On 27 September 2024, the District Court of Kranj granted a temporary injunction preventing Ms Sabec from encumbering or further disposing of the land. Proceedings in Slovenia remain on foot.

G.2 Submissions

G.2.1 Plaintiff’s submissions

233 Monland submitted that the declaration sought goes only to the operation of a contract governed by Victorian law and does not require the Court to determine any question of Slovenian land law. Both the Loan Facility Agreement and the Deed of Forbearance are governed by the law of Victoria, and the Deed of Forbearance contains an exclusive jurisdiction clause in favour of the Courts of this State.^[64]

234 Monland submitted that the relief sought in the Slovenian proceedings is fundamentally different from the declaratory relief sought here. The Slovenian proceedings concern the preservation of the status quo pending the resolution of Monland’s rights.^[65] They seek to prevent encumbrance or further disposal of the land and do not seek any declaration as to how the contractual documents operate. The Slovenian court is not being asked to determine whether clause 4(e) of the Deed of Forbearance is operative. That is a question of Victorian contract law to be determined in Victoria.

235 Monland submitted that the abuse of process argument was under-developed and had not been established. The defendant did not, in either written or oral submissions, take the Court in any forensic or systematic way through the content of the Slovenian proceedings or demonstrate that the same issue or the same controversy was being litigated in both jurisdictions. It was submitted that the defendant’s approach amounted to no more than gesturing to the existence of parallel proceedings and asserting the conclusion.

236 As to utility, Monland submitted that the declaratory relief sought is not hypothetical or abstract. Mr Oman has not, at any point, conceded that the contractual documents operate in the manner Monland contends. He was given an opportunity during cross-examination to accept that they did and did not do so. Unless and until that concession is made, Monland has a real and legitimate interest in having the Court confirm the contractual position, so that Mr Oman’s obligations upon request for security cannot be the subject of future dispute.

G.2.2 Defendant’s submissions

237 Mr Oman submitted that declaratory relief should be refused on the basis that it amounts to an abuse of process, having regard to the Slovenian proceedings. He submitted that by initially seeking the relief in this Court and subsequently electing to commence proceedings in Slovenia, Monland had chosen to litigate the same issue in two different jurisdictions simultaneously, and that the maintenance of the Australian claim after the institution of the Slovenian proceedings was the source of the abuse.^[66]

238 Mr Oman relied on the originating process filed in the Slovenian courts, which makes reference to the Deed of Forbearance as the foundation for Monland’s entitlement to relief in Slovenia. He submitted that the Deed of Forbearance is at the heart of both sets of proceedings, and that the efficacy of clause 4(e) of that document is therefore necessarily being litigated in both jurisdictions. He submitted that this constituted a paradigm example of the kind of parallel litigation warranting a stay.

239 Alternatively, Mr Oman submitted that even if seeking relief in this jurisdiction did not constitute an abuse of process, the Court retained a discretion to decline to grant declaratory relief where no real utility for such a declaration within this jurisdiction could be demonstrated.

G.3 Applicable legal principles

240 The power to grant declaratory relief is conferred by s 36 of the Supreme Court Act 1986 (Vic), which provides that a proceeding is not open to objection on the ground that merely a declaratory judgment is sought, and that the Court may make binding declarations of right without granting consequential relief.

241 The power is discretionary. To attract the exercise of the discretion, the applicant must demonstrate a real interest in the relief and the controversy must be real and not merely hypothetical. A declaration may be granted even in the absence of consequential relief where it will have practical utility in clarifying rights and obligations.^[67]

242 Parallel proceedings in a foreign jurisdiction do not of themselves render the maintenance of a domestic claim an abuse of process. The doctrine of abuse of process in this context is not engaged merely because a party is involved in related proceedings overseas. To make out an abuse, the party asserting it must demonstrate that the same controversy, that is, the same issue, is being litigated in both jurisdictions, such that the domestic proceeding is genuinely duplicative and its continuation vexatious or oppressive.^[68]

243 A court considering whether a domestic proceeding should be stayed by reference to parallel foreign proceedings will have regard, among other things, to: the true nature and full extent of the issues in each proceeding; whether there is a complete correspondence between those issues; whether the relief sought in each proceeding is the same or substantially similar; and whether the foreign forum is clearly the more appropriate forum for the determination of the relevant issue.^[69]

G.4 Consideration

G.4.1 Is the declaratory relief sought an abuse of process?

244 I do not accept the defendant’s abuse of process argument for the following reasons.

245 Monland commenced this proceeding on 7 August 2024, seeking, among other things, a declaration that it has a power of attorney to sign any document on behalf of Mr Oman to provide security over the Slovenian Property.^[70] The Slovenian proceedings were not commenced until 13 September 2024 in direct response to Mr Oman’s execution of the notarial deed transferring the Slovenian Property to Ms Sabec for no consideration on 31 July 2024.

246 Mr Oman’s argument that the maintenance of the declaratory claim in this Court constitutes an abuse of process by reason of the Slovenian proceedings proceeds from a flawed premise, as this Court was first seized of the relevant contractual question, and the Slovenian proceedings were a subsequent and reactive step. Even accepting Mr Oman’s modified formulation, that it was not the commencement but the maintenance of the claim in this Court that became an abuse once Slovenian proceedings were on foot, that argument cannot be sustained where the domestic proceeding preceded the foreign one and where the foreign proceedings were necessitated by the defendant’s own conduct, not by any election on Monland’s part to litigate in two places simultaneously. The Court does not abdicate its jurisdiction properly acquired, merely because a defendant who has already dissipated a security asset then faces proceedings in the jurisdiction where that asset is located.

247 The critical question, in any event, is whether the same controversy is being litigated in both jurisdictions. Here, it is not. The Slovenian proceedings are preservation proceedings. Their purpose, as is apparent from the originating process filed in that jurisdiction, is to prevent Mr Oman from encumbering or further disposing of the Slovenian Property pending the resolution of Monland’s underlying entitlement. The Slovenian court is being asked to preserve the status quo. It is not being asked to determine whether the Deed of Forbearance or the Loan Facility Agreement operate in the manner Monland contends, or what contractual obligations Mr Oman bears in respect of security. As Monland correctly submitted, the reference to the Deed of Forbearance in the Slovenian originating process serves only to establish the factual foundation for the preservation application, to demonstrate that there is a creditor with a potential entitlement justifying the preservation order. That is a standard feature of interim injunction applications and does not involve the Slovenian court adjudicating the contractual question.

248 The declaration sought in this proceeding, by contrast, goes to the construction and operation of instruments governed by Victorian law. Both the Loan Facility Agreement and the Deed of Forbearance are governed by the law of Victoria, and the Deed of Forbearance contains an exclusive jurisdiction clause in favour of Victorian courts. The question of whether clause 4(e) is operative, and what it requires of Mr Oman, is a question to be determined in this jurisdiction under Victorian law. The reference to the Deed of Forbearance in the Slovenian originating process simply establishes the factual foundation for the preservation application. It does not constitute the litigation of that clause’s meaning or effect in the Slovenian courts.

249 Parallel proceedings may be vexatious or oppressive only where there is ‘a complete correspondence between the proceedings’^[71] or ‘the same controversy’ is being litigated in both places.^[72] Neither condition is satisfied here. The defendant’s submission that the efficacy of clause 4(e) is ‘at the heart’ of both proceedings rests on a mischaracterisation of the Slovenian proceedings. Pointing to the existence of the Deed of Forbearance in the Slovenian originating process, without more, does not establish that the construction of that deed is a live issue before the Slovenian court.

250 In any event, the abuse of process contention, as Monland correctly submitted, was not prosecuted in a sufficiently forensic or systematic fashion to satisfy the Court of its foundation. The onus of establishing that the continuation of a claim in this Court amounts to an abuse of process rests on the party asserting it, and it is not discharged by pointing in general terms to the existence of foreign proceedings. In his opening address, Senior Counsel for Mr Oman expressly stated that he did not propose to take the Court to the Slovenian court documents. The defendant did not, in his written submissions or in his oral closing address, take the Court systematically through the content of the documents filed in the Slovenian proceedings or demonstrate in any concrete way how the issue in those proceedings corresponds to the issue raised by the claim for declaratory relief in this Court.

G.4.2 Is there utility in granting declaratory relief?

251 Turning to the question of utility, Mr Oman submitted that the Court should decline to exercise its discretion to grant declaratory relief in the absence of demonstrated utility. The utility requirement does not demand that a declaration be necessary in some absolute sense; it requires that there be a real, rather than a hypothetical or abstract, controversy between the parties and that the declaration serve a practical purpose in resolving it. The following matters are relevant.

252 First, Mr Oman has at no point conceded that clause 4(e) of the Deed of Forbearance or clause 12.3 of the Loan Facility Agreement operates in the manner Monland contends. During cross-examination he was given a direct opportunity to acknowledge the operative effect of clause 4(e) and declined to do so.^[73] As to clause 12.3, while it was not the subject of cross-examination, Mr Oman’s written and oral submissions advanced no substantive concession as to the existence or effect of the power of attorney it confers. His written and oral submissions resisted the declaratory relief on procedural grounds without making the substantive concession that would have rendered a declaration unnecessary. This is not a case in which the declaration sought is hypothetical because the obligor accepts the obligation; the obligor has consistently disputed or declined to acknowledge it.

253 Secondly, the declaration has a concrete practical purpose. Clause 4(e) gives Monland the right to require Mr Oman to execute the Slovenian equivalent of a mortgage over the Slovenian Property. Monland has not yet made that formal request. If Monland were to make a request under the clause and Mr Oman were to refuse, Monland would need to enforce the obligation. A declaration made now that the clause is operative and binding, removes any scope for future dispute as to the contractual foundation for that demand. It also provides Monland with a basis upon which to take steps in Slovenia — including the ongoing proceedings — without returning to this Court for a further determination of the same contractual question. The practical utility of resolving the contractual question definitively in the Court with exclusive jurisdiction, rather than leaving it to be contested piecemeal in the context of enforcement or foreign proceedings, is apparent.

254 Thirdly, the power of attorney conferred by clause 12.3 has its own distinct practical utility. Mr Oman has already shown, by executing a notarial deed purporting to transfer the Slovenian Property to Ms Sabec for no consideration at the very moment that Monland’s enforcement steps became imminent, that he is unwilling to comply voluntarily with his contractual obligations in relation to that security. In those circumstances, a declaration that clause 12.3 confers on Monland an operative and irrevocable power of attorney is of immediate practical utility. It gives Monland a definitive basis upon which to execute any required Slovenian security instrument on Mr Oman’s behalf without needing his cooperation and without returning to this Court.

255 Fourthly, the declaration does not require this Court to enter upon any question of Slovenian law.

256 In relation to the first limb of the declaration, clause 4(e) requires Mr Oman to execute any document ‘such as the Slovenian equivalent of a mortgage’. The form and efficacy of any such document under Slovenian law is a matter for the Slovenian authorities. What this Court is asked to declare is simply that the contractual obligation to provide such security exists and is binding on Mr Oman. That is a question of Victorian contract law under documents expressly governed by Victorian law and subject to the exclusive jurisdiction of this Court. It is precisely the kind of question this Court is best placed to determine.

257 In relation to the second limb of the declaration, Mr Oman’s counsel submitted that the declaration would require this Court to consider whether a power of attorney of the kind conferred by clause 12.3 is valid and operative under Slovenian law and that this diminished the utility of making a declaration in relation to that limb. I do not accept that submission. The declaration goes only to the contractual position between the parties under Victorian law. It declares what clause 12.3 confers, not what effect any instrument executed pursuant to it will be given by Slovenian land authorities. Whether the power of attorney satisfies any Slovenian formal requirements is a distinct question for the Slovenian forum.

G.4.3 Should the declaration sought be made?

258 Independently of the questions of abuse of process and utility, the Court must be satisfied that the declaration sought should be made.

259 The declaratory relief sought by Monland^[74] has two distinct limbs. The first limb, founded on clause 4(e) of Schedule 1 to the Deed of Forbearance, is that upon request by Monland, Mr Oman is obliged within seven days to provide all assistance and execute any document (such as the Slovenian equivalent of a mortgage) required to grant security over the Slovenian Property. The second limb, founded on clause 12.3 of the Loan Facility Agreement, is that Monland holds an irrevocable power of attorney to execute any such document on Mr Oman’s behalf. These are distinct in character. The first limb imposes a personal obligation of performance on Mr Oman. The second limb confers on Monland an independent self-help remedy operative without Mr Oman’s cooperation.

260 Clause 4(e) of Schedule 1 to the Deed of Forbearance provides, in substance, that at any time during or after the forbearance period, Monland as lender may require Mr Oman as individual guarantor to provide further security over the Slovenian land to secure the guarantee, and that Mr Oman must provide all necessary assistance and execute any document such as the Slovenian equivalent of a mortgage within seven days of being requested. That obligation is expressed in clear and unconditional terms. It is not qualified by any condition precedent beyond Monland making the relevant request. The Deed of Forbearance was executed by all relevant parties on 18 October 2023. Mr Oman does not contend that the clause is ambiguous, that it was not duly executed, or that any other ground of invalidity exists. His only objection to the declaration is procedural, namely the abuse of process and utility arguments that I have rejected.

261 Clause 12.3 of the Loan Facility Agreement operates differently from clause 4(e) and must be understood on its own terms. It does not simply require Mr Oman to render assistance in creating security upon request. Rather, it grants to Monland as Financier, and to each Authorised Officer of Monland, an irrevocable power of attorney, expressed to be granted by each Obligor for valuable consideration to secure the performance of its obligations under each Finance Document, to do on the Obligor’s behalf, and in the Obligor’s or the attorney’s name, anything the attorney considers necessary or expedient to give effect to a power or exercise of a power, or to perfect any Finance Document, including by signing any document for that purpose. The power is expressed to be irrevocable. It operates while an Event of Default subsists.

262 The condition precedent to the operation of the power of attorney is the subsistence of an Event of Default. Each of Monland’s and Mr Oman’s failure to repay the outstanding amounts under the Loan Facility Agreement by the date required under the Deed of Forbearance, and their continuing failure thereafter, constitutes an Event of Default.^[75] Separately, Mr Oman’s transfer of the Slovenian Property to Ms Sabec also amounts to an Event of Default.^[76] No submission to the contrary was made by Mr Oman. The power of attorney under clause 12.3 is therefore presently operative.

263 The practical significance of clause 12.3 in the present context is substantial. It gives Monland a direct mechanism, independent of Mr Oman’s cooperation or willingness, to execute on his behalf any Slovenian security instrument required to perfect its interest in the Slovenian Land. This is of particular importance given that Mr Oman has demonstrated, by executing the July 2024 notarial deed transferring the Slovenian Property to Ms Sabec for no consideration, that he is unwilling to comply voluntarily with his contractual obligations in relation to that security. The power of attorney represents Monland’s contractual protection against precisely that contingency.

264 Counsel for Mr Oman submitted that granting the declaration in relation to the power of attorney would necessarily require this Court to consider whether the power of attorney is valid and operative under Slovenian law, including, in particular, whether a power of attorney of the kind conferred by clause 12.3 satisfies the formal or substantive requirements of Slovenian law for the execution of security documents over land situated in Slovenia. On that basis it was submitted that the second limb of the declaration sought, unlike the first limb, would draw the Court into questions of foreign law that it is not well placed to determine and which are more appropriate for determination in Slovenia.

265 That submission misconceives the scope of the declaratory relief sought and what this Court is being asked to determine. The second limb of the declaration sought goes only to the contractual position between the parties under Victorian law. It declares that clause 12.3 of the Loan Facility Agreement confers on Monland an irrevocable power of attorney. That is a question of the proper construction and effect of that contractual provision under Victorian law. It is precisely the kind of question this Court is best placed, and by the parties’ agreement is required, to determine. The declaration says nothing about whether an instrument executed by Monland, pursuant to that power of attorney will be recognised, registered, or given effect under Slovenian land law. Those are distinct questions, and the declaration does not purport to answer them. Whether the Slovenian land registration authorities will treat such a power of attorney as satisfying Slovenian formal requirements, and what steps may be necessary to give effect to the power in the Slovenian jurisdiction, are matters for those authorities and, if necessary, for the Slovenian courts.

266 This distinction is not merely technical. It reflects the proper allocation of jurisdiction between this Court and the Slovenian courts. This Court determines what the parties have agreed, under the law they have chosen to govern their agreement. The Slovenian courts and authorities will determine what effect is given to any instrument created in reliance on that agreement, under Slovenian law, in respect of Slovenian land.

267 For these reasons the declaratory relief sought is appropriate and will be granted.

H. CONCLUSIONS AND RELIEF

268 For the reasons set out above, I find that:

(a) The alleged representations were not made by Mr Mondous. Mr Oman has not established, to the requisite degree, that during the telephone call of 14 March 2024, Mr Mondous made any representation, assurance, or promise that Monland would not pursue him personally under the personal guarantee.

(b) Even if the alleged representations had been made, Mr Oman has not established that they were of a character that would found a promissory estoppel or statutory cause of action. Further, he has not established reliance or loss necessary to enliven a promissory estoppel or a cause of action for misleading or deceptive conduct. The Cleveland offer was not, on the information available as at 14 March 2024, a genuine commercial proposition capable of completion, and acceptance of the Istvan offer did not cause Mr Oman any recoverable loss.

(c) The declaratory relief sought by Monland, in respect of the operation of the Deed of Forbearance and the Loan Facility Agreement as they relate to the Slovenian Property, is appropriate and will be granted. The claim for that relief does not amount to an abuse of process.

(d) Monland is entitled to judgment for the outstanding guaranteed debt together with interest.

(e) The defendant’s counterclaim will be dismissed.

269 The parties are required to confer and, within fourteen days:

(a) submit a proposed form of order to give effect to these reasons, including as to costs; or

(b) failing agreement, file and serve submissions of no more than four pages addressing these matters and attaching their preferred form of order.

---

^[1] Court Book filed on 26 November 2025 (CB), 265–266 [cl. 9.10(c)].

^[2] Merkon Construction Pty Ltd v Residence Company Pty Ltd [2025] VSC 151. On 28 March 2025, Merkon obtained judgment against Residence Company in the sum of $2,444,173.33. Residence Company was unable to satisfy the judgment. On 6 August 2025, Merkon obtained a winding up order against Residence Company.

^[3] Transcript of Proceeding, Monland Pty Ltd v Oman (Supreme Court of Victoria, Waller J, 2–4 December 2025, 28 January 2026) 295:14–16 (Transcript). Mr Oman said that although he asked for the valuation to be done, he did not see it until it was included in the Court Book.

^[4] Exhibit P1, 3.

^[5] Transcript 279:10–13, 18-19.

^[6] Transcript 248:7–13.

^[7] Transcript 128:25–31; 129:1–3.

^[8] Watson [1995] NSWCA 497; (1995) 49 NSWLR 315, 318–319.

^[9] Evidence Act 2008 (Vic) s 140.

^[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 (Dixon J) (Briginshaw); Axon v Axon (1937) 59 CLR

395, 403 (Dixon J); Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 305 (Dixon CJ) (Jones); see also Lehrmann v Network

Ten Pty Ltd [2024] FCA 369, [5]–[8] (Lee J); Country Club Villages Pty Ltd & Ors v Burke & Ors [2026]

VSC 171, [41]–[42] (Craig J) (Country Club).

^[11] Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J); Watson [1995] NSWCA 497; (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).

^[12] John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, [94] (Hammerschlag J).

^[13] Euromark Ltd v Smash Enterprises Pty Ltd [2021] VSC 97, [38]–[41] (Lyons J) (Euromark); Gestmin SGPS

SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) [15]–[22] (Leggatt J) (Gestmin); Turner v Richards [2025] NSWCA 83, [58]–[60] (Payne JA) (Turner); ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128, [26] (Bell P) (ET-China.com); Country Club [2026] VSC 171, [44] (Craig J).

^[14] Watson [1995] NSWCA 497; (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).

^[15] Gestmin [2013] EWHC 3560 (Comm) [22]–[23] (Leggatt J); Mark Steele, Jason Chin and Celine van Golde,

‘Witness Preparation and the Corruption of Memory: A Survey of Australian Trial Judges’ (2024) 48(1)

Melbourne University Law Review 152.

^[16] Gestmin [2013] EWHC 3560 (Comm) [21] (Leggatt J); Country Club [2026] VSC 171, [44] (Craig J).

^[17] Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524, [286] (Delany J) (Timeless

Sunrise); Euromark [2021] VSC 97, [39]–[41] (Lyons J); Gestmin [2013] EWHC 3560 (Comm) [22] (Leggatt J); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [31] (Gleeson CJ, Gummow and Kirby JJ) (Fox); ET-China.com [2021] NSWCA 24; (2021) 388 ALR 128, [26]–[29] (Bell P); Country Club [2026] VSC 171,[44], [47]–[48] (Craig J).

^[18] Tjiong v Chang [2025] NSWCA 25, [41]–[44] (Basten AJA), [502]–[503] (Price AJA); Turner [2025] 83, [61]

(Payne JA).

^[19] Timeless Sunrise [2023] VSC 524, [286] (Delany J); Onassis v Vergottis [1968] 2 Ll 403, 431 (Lord Pearce);

Gestmin [2013] EWHC 3560 (Comm) [22] (Leggatt J); Turner [2025] NSWCA 83, [81] (Payne JA).

^[20] Pell v R [2019] VSCA 186, [897] (Weinberg JA) citing Sir Richard Eggleston, Evidence, Proof and

Probability (Weidenfeld and Nicolson, 2^nd ed, 1983) 192–3; Fox [2003] HCA 22; (2003) 214 CLR 118, [31] (Gleeson CJ,

Gummow and Kirby JJ); ET-China.com [2021] NSWCA 24; (2021) 388 ALR 128, [26]–[29] (Bell P).

^[21] Timeless Sunrise [2023] VSC 524, [286] (Delany J); Onassis v Vergottis [1968] 2 Lloyds Rep 403, 431 (Lord

Pearce); Watson [1995] NSWCA 497; (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq); Country Club [2026] VSC 171, [45]

(Craig J).

^[22] Timeless Sunrise [2023] VSC 524, [288] (Delany J).

^[23] Coonwarra Pty Ltd v CornoNero Pty Ltd [2023] VSC 781, [44] (Nichols J); Timeless Sunrise [2023] VSC

524, [286] (Delany J); Turner [2025] NSWCA 83, [61] (Payne JA); Country Club [2026] VSC 171, [49] (Craig J).

^[24] Timeless Sunrise [2023] VSC 524, [286] (Delany J); Turner [2025] NSWCA 83, [82] (Payne JA);

Realestate.com.au Pty Ltd v Hardingham RP Data Pty Ltd (2022) 277 CLR 115, [46] (Gordon J); ET-China.com

[2021] NSWCA 24; (2021) 388 ALR 128, [27]–[29] (Bell P).

^[25] Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWCA 210, [159] (Emmett AJA).

^[26] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 320–321 (Windeyer J).

^[27] Timeless Sunrise [2023] VSC 524, [286]–[288] (Delany J).

^[28] Transcript 310:5–6.

^[29] Witness Outline of Mark Harry Oman dated 29 October 2025, 1.

^[30] Affidavit of Mark Harry Oman affirmed on 5 October 2024, [30].

^[31] Defence and counterclaim filed on 7 October 2024, [4].

^[32] Amended defence and counterclaim filed on 7 March 2025, [4].

^[33] Further amended defence and counterclaim filed on 25 October 2025, [10G].

^[34] Witness Outline of Mark Harry Oman dated 29 October 2025, [24].

^[35] [1995] NSWCA 497; (1995) 49 NSWLR 315, 318–319 (McLelland CJ in Eq).

^[36] Transcript 337:30–31.

^[37] Transcript 248:7–10.

^[38] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471, 483–484 (Gleeson CJ, McHugh,

Kirby, Hayne and Callinan JJ) (Equuscorp).

^[39] Exhibit P2, 4.

^[40] [1988] HCA 7; (1988) 164 CLR 387, 428–429 (Brennan J).

^[41] (2014) 253 CLR 560, [88] (Hayne, Crennan, Kiefel, Bell and Keane JJ), citing Gillett v Holt [2001] Ch 210,

232 (Robert Walker LJ).

^[42] (1990) 170 CLR 394, 407 (Mason CJ).

^[43] See also s 12BB of the ASIC Act (Cth).

^[44] Body Bronze International Pty Ltd v Fehcorp Pty Ltd [2011] VSCA 196, [48]–[52] (Macaulay AJA) (Body

Bronze); IDI Enterprises Pty Ltd v Classified Transport Pty Ltd (2011) 111 SASR 155, [42]–[45] (Doyle CJ,

Vanstone and Peek JJ) (IDI Enterprises).

^[45] (1989) 16 IPR 189, 201–202 (Lee J).

^[46] [1986] FCA 41; (1986) 64 ALR 347, 372 (Toohey J).

^[47] [1988] HCA 7; (1988) 164 CLR 387, 428–429 (Brennan J).

^[48] (1990) 170 CLR 394 (Mason CJ).

^[49] Ibid 443–444 (Deane J) .

^[50] AFSL v Hills (2014) 253 CLR 560, [88] (Hayne, Crennan, Kiefel, Bell and Keane JJ), citing Gillett v Holt [2001] Ch 210, 232 (Robert Walker LJ).

^[51] Equuscorp [2004] HCA 55; (2004) 218 CLR 471, 483–484 (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).

^[52] James v ANZ [1986] FCA 41; (1986) 64 ALR 347, 372 (Toohey J).

^[53] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109, 130 (Gaudron, Gummow, Hayne and Callinan JJ); Henville v Walker (2001) 206 CLR 459, 474 [35] (Gleeson CJ); 481-483 [65]–[72] (Gaudron J); 493 [106] (McHugh J); 507 [153] (Gummow J); 510 [166] (Hayne J).

^[54] [1988] HCA 7; (1988) 164 CLR 387, 428–429 (Brennan J).

^[55] S.T.Y. (Afforestation) Pty Ltd v Atkinson [2006] VSCA 283, [2]–[3] (Maxwell P).

^[56] Walton Stores [1988] HCA 7; (1988) 164 CLR 387, 428–429 (Brennan J).

^[57] Wheeler Grace (1989) 16 IPR 189, 201–202 (Lee J); James v ANZ [1986] FCA 41; (1986) 64 ALR 347, 372 (Toohey J); Body

Bronze [2011] VSCA 196, [48]–[52] (Macaulay AJA); IDI Enterprises (2011) 111 SASR 155, [42]–[45]

(Doyle CJ, Vanstone and Peek JJ).

^[58] [1988] HCA 7; (1988) 164 CLR 387, 428–429 (Brennan J).

^[59] (1990) 170 CLR 394 (Mason CJ).

^[60] Exhibit P1, 3.

^[61] Exhibit P5, 1–5.

^[62] [1988] HCA 7; (1988) 164 CLR 387, 428–429 (Brennan J).

^[63] (1990) 170 CLR 394 (Mason CJ).

^[64] CB 212 [cl. 21.20]; CB 511 [cl. 13].

^[65] CB 1365–1369 (translated originating process, District Court of Jesenice, filed 13 September 2024).

^[66] Defendant's Outline of Closing Submissions filed on 22 December 2025, [118]–[121].

^[67] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581–582 (Mason CJ, Dawson, Toohey and

Gaudron JJ).

^[68] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391–392 (Dawson, Toohey, Gaudron,

McHugh, Gummow and Kirby JJ) (CSR v Cigna).

^[69] Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 590–591 (Dawson, Gaudron, McHugh and Gummow JJ); Sapphire

Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589, [80] (Rees J).

^[70] Statement of Claim filed on 7 August 2004, Prayer for Relief, [D].

^[71] CSR v Cigna (1997) 189 CLR 345, 393 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), citing Bank of Tokyo Ltd v Karoon [1987] AC 45, 60 (Robert Goff LJ).

^[72] Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 590–591 (Dawson, Gaudron, McHugh and Gummow JJ).

^[73] Transcript 313:17–31.

^[74] See proposed form of order annexed to Plaintiffs’s Outline of Opening Submissions dated 7 November 2025.

^[75] CB 271 [12.1[(a)]. Clause 12.1(a) of the Loan Facility Agreement provides that an Event of Default occurs if an Obligor does not pay any of the Secured Money that is due and payable by it under any Finance Document.

^[76] CB 272–273 [12.1(k)(i)]. Clause 12.1(k)(i) of the Loan Facility Agreement provides that an Event of Default occurs if an Obligor ceases to be the legal and beneficial owner of any part of the Secured Property.

Supreme Court of Victoria

Search AustLII

All Databases

Cases & Legislation

Journals & Scholarship

Law Reform

Treaties

Libraries

Communities

LawCite

Australia

CTH

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

New Zealand

Specific Year

Any

Any

Monland Pty Ltd v Oman [2026] VSC 240 (30 April 2026)

Authorities Cited9

Referred to (9)