An injunction is a court order restraining a party from specific conduct or, less commonly, requiring positive action. Most injunctions are prohibitory, preventing actions such as property sales, contract breaches, or disclosure of confidential information. Mandatory injunctions, which compel action, are less frequent. Injunctions may be sought on an interim or final basis to protect legal rights and maintain the status quo pending resolution of a dispute. The applicant must provide detailed supporting evidence, typically by affidavit, outlining the relevant facts and documents.

The High Court of Australia provided principles relating to the granting of injunctions in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57:

  • whether there is a serious question to be tried;
  • whether the balance of convenience favours the grant of the injunction and, as part of that enquiry, whether damages would be an adequate remedy in lieu; and
  • whether an undertaking as to damages on the part of the party seeking injunctive relief would be adequate in all the circumstances, should the injunction be granted.

The primary issue is whether the plaintiff has established a seriously arguable case for final injunctive relief, when weighed against the balance of convenience.The plaintiff always bears the burden of proving a seriously arguable case for an interlocutory injunction.

The balance of convenience is only considered once there is a seriously arguable case for final relief.

The strength of the case for final relief may influence the balance of convenience. A strong case may justify interlocutory relief where the balance of convenience is only marginally favourable. A weaker but seriously arguable case may suffice if the balance of convenience strongly supports relief.

The adequacy of damages is relevant to the existence of a seriously arguable case for final relief. Where damages would be sufficient and final injunctive relief would be refused for that reason, a Court should not grant interlocutory relief.

Crisp Order

Ipp JA described a Crisp order in Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109:

“A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported). Generally speaking, such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff’s benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported), Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to ‘cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital’.

A Crisp order may entitle a plaintiff to require the executor to sell a home devised by the Will or owned by the estate and to use the proceeds for purposes such as purchasing another home for the plaintiff’s occupation or providing accommodation in a retirement village or similar institution. The order is intended to provide flexibility and is often described as conferring a portable life interest.

Background

Zdzislaw Pergol (the defendant) was born in 1955. He married Ms Valentina Pergol(the deceased) on 6 June 1989. Following the death of her (first) husband, and the defendants half brother Mr Antony Pergol (‘Antony’), in 1988, the deceased became the sole owner of the property. The deceased had two daughters with Antony: Ms Danuta Farrance (the plaintiff) and Ms Anna Superina. 

Following Antony’s death, the deceased informed the defendant of his half-brother’s demise and invited the defendant to visit her in Australia. He accepted the invitation and arrived in Australia in November 1988. He stayed with the deceased at the property. The deceased died on 28 September 2023, aged 96, leaving a Will dividing the estate into three equal shares, the shares going to the defendant, the plaintiff, and Ms Superina, respectively. 

The deceased was 28 years older than the defendant. They married in June 1989 and lived together as spouses.

On 24 October 2025, the defendant filed a notice of motion. The primary proceedings, commenced by a statement of claim on 15 May 2025, seek possession of a property in Canley Heights, Sydney.

Additionally, the defendant is the plaintiff in family provision proceedings under Pt 3.2 of the Succession Act 2006 (NSW) commenced by a summons filed on 11 November 2024, in which the plaintiff is the defendant.

Ms Superina was appointed executor under the Will, with the plaintiff named as substitute executor. The plaintiff was granted probate on 22 June 2024. The property is the estate’s primary asset. The estate also includes approximately $9,250 in a bank account.

However, because Ms Superina predeceased the deceased, her share goes to her children.

The defendant has resided at the property since he arrived in Australia. He does not hold a lease or any agreement entitling him to occupy the property. The Will does not confer any proprietary interest in the property on the defendant.

The defendant is a pensioner. He holds $150,000 in a term deposit and a small balance in an everyday account. He has withdrawn his superannuation and states he cannot afford to purchase a comparable property. The property is a free-standing, unencumbered house with a garden.

On 21 October 2024, the plaintiff’s solicitors notified the defendant that the plaintiff intended to sell the property. The defendant was advised that, if the plaintiff sold the property, the defendant would be required to provide vacant possession at settlement.

The defendant did not respond to the solicitors’ letter. The correspondence appears to have prompted the filing of the summons on 11 November 2024.

The plaintiff engaged a real estate agent on 31 December 2024. The property was not listed on the open market, but a purchaser was identified, and contracts were exchanged on 19 February 2025 for $1,675,000.

The contract for sale includes an extended cooling-off period, as the purchaser has not accessed the property to obtain finance. The cooling-off period has been extended multiple times and is currently set to expire on 20 April 2026.

A valuation obtained by the defendant in March 2025 assessed the property’s value between $1,800,000 and $1,900,000.

The Will

The terms of the deceased’s Will do not support speculation regarding the defendant’s entitlement. The relevant clause provides:

“As to one-third (1/3) share of the residue of my estate to my brother-in-law ZDZISLAW PERGOL of XXXXX X, Canley Heights in the said state.”

The Will refers to the defendant as ‘brother-in-law’ rather than ‘husband’, but there is no evidence that the marriage was not genuine. The Certificate of Marriage dated 6 June 1989 is valid, and the parties lived together until 2018. The Will divides the estate equally between the two daughters and the defendant

The defendant and the deceased lived together at the property until 2018, when the deceased moved to a nursing home due to declining health. She died in 2023. The defendant has remained in the property and seeks to continue residing there. He has commenced proceedings under the Succession Act seeking a life interest in the property or a Crisp order.

The notice of motion seeks an injunction restraining the plaintiff from selling the property, a stay of any possession order, and an order that the family provision and possession proceedings be heard together. The parties’ submissions focused primarily on injunctive relief, with the understanding that the outcome of the injunction application would determine the stay application.

Parker J, in Theocharous v Theocharous  [2025] NSWSC 45, said, from [52]-[53]:

“52 … The relief foreshadowed on behalf of Harris was a Crisp order, namely a provision creating a testamentary trust to provide accommodation for Harris for the rest of his life: Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported) Milillo v Konnecke [2009] NSWCA 109 at  [47]– [48]. The terms of that order, including the terms of the trust sought, could and should have been specified in the originating summons.

53 Andrew’s solicitors were therefore clearly right to point out in their letter of 4 July last year that the foreshadowing of a claim to the Marshall Street property in correspondence was no answer to Andrew’s right to possession …”

Plaintiffs Submissions

The plaintiff argued that the defendant’s approach to this issue was flawed. The only serious question was whether the defendant sought a life interest in the property or a Crisp order. It could not concern an increased estate share (more than 1/3) because such relief could be safeguarded through orders or undertakings related to the sale proceeds. According to the plaintiff, the problem was that the summons in the Succession Act proceedings, as filed, did not mention a life interest or any other relief that would allow the defendant to remain in the property. The relief requested

“that further provision be made for the plaintiff’s maintenance, education and advancement in life pursuant to s 59 of the Succession Act out of the estate and/or notional estate of the late Valentina Peregol …”

In October 2025, the defendant applied for a stay of the possession proceedings and an injunction restraining the executor from selling the property. The Court identified two principal considerations. First, the Court was not satisfied that the family provision proceedings raised a serious question to be tried (Farrance v Pergol [2026] NSWSC 382 (Elkaim AJ) at [47]).

Is there a serious question to be tried in the possession proceedings?

The amended defence alleges an oral agreement between the deceased and the defendant where the deceased told the defendant, before moving to the nursing home, that he would not have to leave and could continue to live at the property, provided he maintained the house. The defendant submits that he relied on this assurance, maintained the property, and paid all outgoings. Although not necessarily excluding the deceased’s words, note Mr Pergol states in his affidavit of 14 March 2025:

“31. In or around 2012, Vala had a stroke. Vala woke up in the night and walked to the bathroom. I woke up to find Vala in the hallway, and she said to me words to the effect of, ‘/don’t know how to get back to bed.’ I put Vala back in bed.

The next day, I called Anna and said to her words to the effect of, ‘Anna, please come over. I need to go to work, but something is wrong with your mother. Please come.’

Later that day, I received a call from the hospital to say that Vala was crying and didn’t know where she was. Anna was not with her, and she had suffered another stroke. The stroke left Vala struggling to speak. Initially, her movement was okay, but her speech was badly impacted. I would take Vala to speech therapy each month, but she did not recover, and her speech continued to get worse until she could not speak much at all.” 

The plaintiff submitted that the defendant should have included any substantive allegation in the summons. The defendant did not raise the alleged promise, which was not raised with the plaintiff after notice of the sale or during their November 2024 telephone call. According to his affidavit of 14 March 2025, when informed of the intended sale, the defendant responded:

“Danuta, you can’t sell the house. I live here.”

The defendant’s claim is based on an uncorroborated oral promise that may be construed as a life interest. The Court noted the need for caution in accepting such evidence, given that the deceased cannot contest the alleged statement.

However, the Court could not say that there was no serious question to be tried in the possession proceedings (at [57]).

The defendant delayed after being notified of the intended sale in October 2024. He did not respond to the correspondence, but later instructed lawyers to file the summons in November 2024. The summons did not refer to a Crisp order, a life interest, or a request to prevent the sale.

Additionally the terms of s 65 of the Succession Act clearly provide that a summons which is ultimately seeking a life interest in property should include that relief as part of the relief claimed.

The Court found that Mr Pergol’s substantial and costly delay weighed against granting an injunction (at [62]).

In Scyne Advisory Business Services Pty Ltd v Heaney (2024) 329 IR 461; [2024] NSWSC 275, Parker J said, at [66]-[67]:

“There are many statements of authority to the effect that an application for an interlocutory injunction should be made promptly. As Young J observed in Network Ten Limited v Fullwood (4 December 1995 – unreported):- 

“Finally, the Court expects in cases of interlocutory injunction that people will act promptly. As I sit here in this duty list, if a person has let a week go by, it is only in a very strong case that I can be persuaded to grant an injunction or grant short service because if a person is to seek an injunction, it should be sought promptly.”

Subsequently, after considering certain submissions in relation to this matterElkaim AJ said,:-   

“However, there is a separate principle that, on an interlocutory injunction, the Court, in its discretion, will refuse the injunction if there has been a delay which is not adequately explained. I do not consider that the delay has been adequately explained in this case. Accordingly, in my view, the defendants are ahead on this second matter.”

The Court is always entitled to use, as a litmus test of the seriousness of the infringement of a plaintiff’s rights, how fast the plaintiff reacts to the infringement of its rights. It is not only an example of the equitable doctrine of laches, but also an admission by conduct of the seriousness of the infringement of the plaintiff’s rights. Thus, it is a matter that goes to the balance of convenience, not merely to the question of whether there is a serious question to be tried, which a defence of laches might meet at trial.

As this passage makes clear, a delay in instituting proceedings may give rise to a substantive defence of laches. But delay in applying for interlocutory relief (whether or not proceedings have been instituted) may separately be an answer to such an application.”

The Court found the defendant’s delay was substantial and resulted in additional costs for the possession proceedings and the purchasers. Weighing against granting an injunction.

The Court was not satisfied that the defendant had established a sufficient basis for interlocutory injunctive relief. The claims to a life interest or a Crisp order were considered weak. Several discretionary factors also weighed against relief.

As the application for an injunction was unsuccessful, there was no basis for a stay, as the defendant made no submissions in support of one. The Court considered any order to hear the related proceedings together premature, as the possession proceedings were not ready for hearing. The defendant was ordered to pay the costs of the possession proceedings. The purchasers were ordered to bear their own costs of the motion and their appearance.

Costs

In relation to costs, the Court accepted the parties’ position that, if unsuccessful, the defendant should bear costs in the cause of the possession proceedings. The purchasers, who appeared by leave, were ordered to bear their own costs. Accordingly, the Court dismissed the defendant’s notice of motion, ordered that the costs of the motion be costs in the cause, and directed that the purchasers pay their own costs associated with the motion, including their costs of appearance at the hearing.

The plaintiff argued that the defendant’s approach to this issue was flawed. The only serious question to be addressed was whether the defendant sought a life interest in the property or a Crisp order. It could not concern an increased estate share (more than 1/3) because such relief could be safeguarded through orders or undertakings related to the sale proceeds. According to the plaintiff, the problem was that the summons in the Succession Act proceedings, as filed, did not mention a life interest or any other relief that would allow the defendant to remain in the property. The relief requested only

“that further provision be made for the plaintiff’s maintenance, education and advancement in life pursuant to s 59 of the Succession Act out of the estate and/or notional estate of the late Valentina Peregol …”

In Ashton v Pratt (No 2) [2012] NSWSC 3, at [18], Brereton J stated:

“In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the Court scrutinises the claimant’s evidence closely [Plunkett v Ball [1915] HCA 14; (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)].”

Elkaim AJ could not rule out the possibility that the plaintiff might be believed, but his prospects of success are weak. While not asserting a strong case, his Honour believed there is a serious question to be tried in the possession proceedings. Concerning the Key considerations balance of convenience, delay and prejudice to third parties, along with the court’s discretion to grant an injunction.

The defendant was first informed of the property sale in October 2024. He didn’t respond. After consulting lawyers, he filed a summons in November 2024 that didn’t mention a Crisp order or a life interest, nor did it request that the plaintiff refrain from selling. The defendants His solicitors could have sought an agreement to delay the sale while the summons was considered. The summons was also filed out of time, with a 12-month limitation period. If the plaintiff’s solicitors had sought an agreement and it was refused, that would have been the right moment to seek an injunction. Costs would have been minimised, and no sale contract would have been exchanged. Later, on 20 February 2025, when the plaintiff learned of the sale, that was another potential trigger for action.

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