Malass v Alam (No 2)

1. [1]

   I gave judgement in these proceedings on 5 March 2026: see Malass v Alam [2026] NSWSC 151 (PJ or Primary Judgment).

2. [2]

   What follows assumes familiarity with and maintains the same definitions as in the Primary Judgment.

3. [3]

   The Primary Judgment resolved whether Malass should be granted leave to lodge a further caveat over the Property. I declined to grant this leave in circumstances where Alam had offered a charge over an alternative property, together with a caveat over that property.

4. [4]

   I directed the parties to confer to seek to agree orders, including as to costs.

5. [5]

   The parties were apart on the appropriate costs orders. I have received written submissions from both.

6. [6]

   Alam contended that the appropriate costs order is for Malass to pay Alam’s costs of the day of the hearing of the motion on 20 February 2026 and the costs of Malass’ motion otherwise to be costs in the cause. In support of this position it was contended that it was unreasonable for Malass to proceed with the motion on 20 February 2026 once the offer of a charge over the Auburn Property was made. Whilst the offer of the Auburn Property was made shortly prior to the hearing, an alternative charge over the Heathcote Property was made in advance of the hearing. It was said to be unreasonable for Malass to reject that offer in respect of the Heathcote Property.

7. [7]

   Malass contended that the appropriate costs order is that there be no order as to the costs of the day of the hearing of the motion on 20 February 2026, and the costs of Malass’ motion is otherwise to be costs in the cause. This position is predicated on the fact that two motions were listed for hearing on 20 February 2026 with one being resolved by consent. On the remaining caveat motion, each party had a measure of success. Malass preserved his security position (contrary to Alam’s primary argument), although not in the form ultimately proposed. Alam achieved a measure of success in having his preferred form of alternative security accepted (offered just prior to the hearing) but did not succeed in his primary position of no additional security.

8. [8]

   In my view, it is appropriate in the circumstances that the costs of the motion filed 29 January 2026 (including the costs of the argument on 20 February 2026) be costs in the cause. Neither party enjoyed complete success at the hearing on 20 February 2026. Malass’ primary position was not accepted, nor was Alam’s. The alternate position of a charge over the Auburn Property was only offered just prior to the hearing and Malass should not be criticised for not immediately accepting that offer. I made no finding in the Primary Judgment as to the suitability of the Heathcote Property.

9. [9]

   There is no reason to separate the costs of the hearing on 20 February 2026 from the remainder of the costs of the motion.

Conclusion and orders

1. [10]

   The Court orders that:

   1. (1)

      The plaintiff withdraw caveat AV850784.

   2. (2)

      The following undertakings noted in the Orders of 6 February 2026 be released:

   3. (3)

      The plaintiff’s motion filed 29 January 2026 be dismissed, and the costs of the plaintiff’s motion be costs in the cause.

   4. (4)

      The Court notes that Alam & Itaoui Investments Pty Ltd, as registered proprietor of the land at 198 Parramatta Road, Auburn NSW (being Lot 2 in Deposited Plan 304990) (Auburn Property) agrees to charge the Auburn Property as security for the payment of any sum found by this Court in this proceeding as representing the interest of the plaintiff in 571 Avondale Road, Avondale NSW by reason of the matters pleaded in the Plaintiff’s Amended Statement of Claim (as amended from time to time) (Auburn Charge).

   5. (5)

      The court notes the agreement of each of the defendants to the plaintiff lodging a caveat over the Auburn Property to secure the Auburn Charge.