Geoffrey Ralph Lyster in their own capacity and as trustee for the G Trust v 87 Bayview Tce Pty Ltd in its own capacity and as trustee for the a Trust [No 2] - [2025] WASC 417

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GEOFFREY RALPH LYSTER in their own capacity and as trustee for THE G TRUST -v- 87 BAYVIEW TCE PTY LTD in its own capacity and as trustee for THE A TRUST [No 2] [2025] WASC 417
CORAM:   GETHING J
HEARD:   18 SEPTEMBER 2025
DELIVERED          :   2 OCTOBER 2025
FILE NO/S:   CIV 1873 of 2024
BETWEEN:   GEOFFREY RALPH LYSTER in their own capacity and as trustee for THE G TRUST
First Plaintiff
DIANNE LEE LYSTER in their own capacity and as trustee for THE G TRUST
Second Plaintiff
AND
87 BAYVIEW TCE PTY LTD in its own capacity and as trustee for THE A TRUST
First Defendant
WA LANDBANK PTY LTD in its own capacity and as trustee for THE KARAKARA TRUST
Second Defendant
ALAN JAMES MARSHALL
Third Defendant

Catchwords:

Proper construction of a deed of settlement - Turns on own facts

Legislation:

Nil

Result:

Preliminary issue determined

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr B J Dalitz
Second Plaintiff	:	Mr B J Dalitz
First Defendant	:	Mr I Freeman
Second Defendant	:	Mr I Freeman
Third Defendant	:	Mr I Freeman

Solicitors:

First Plaintiff	:	Bailiwick Legal
Second Plaintiff	:	Bailiwick Legal
First Defendant	:	Lavan
Second Defendant	:	Lavan
Third Defendant	:	Lavan

Case(s) referred to in decision(s):

Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
Chevron (TAPL) Pty Ltd v Pilbara Iron Company (Services) Pty Ltd [2021] WASCA 193
Freedom Willetton Pty Ltd v Commissioner of State Revenue [2021] WASCA 38
GR Engineering Services Ltd v Investment Ltd [2021] WASCA 136
McCleary v Dien Australia Pty Ltd [2021] WASCA 272
Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [2025] WASCA 82
Palmer v Ayres; Ferguson v Ayres (2017) 91 ALJR 325
Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171
Re Crusts'n'Crumbs Bakers (Wholesale) Pty Ltd [1992] 2Qd R 76
Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39
Recce Pharmaceuticals Ltd v Ian David Brown [2022] WASCA 66
Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd (No 2) [2020] WASCA 201

GETHING J:

Introduction

On 8 December 2020, the parties to this action, together with a number of other parties, executed a Deed of Settlement and Release (2020 Deed). The recitals to the 2020 Deed record that the signatories were at the time parties to proceedings in the Supreme Court (2018 Action). The plaintiffs in this action are Geoffrey Lyster and Dianne Lyster each in their own capacity and as trustee of the G Trust (Plaintiffs). The defendants are 87 Bay View Terrace Pty Ltd (ACN112 742 355) in its own capacity and as trustee for the A Trust, WA Landbank Pty Ltd (ACN 060 351 939) (Landbank) in its own capacity and as trustee for the Karakara Trust and Alan Marshall (Marshall Parties). For ease of reference, I have defined the Marshall Parties in the same terms as in the 2020 Deed.
The matter before the court concerns cl 2.7(b) of the 2020 Deed. It provides:
The Marshall Parties shall, at their sole cost, dissolve and or wind up the First Joint Venture and Second Joint Venture within 30 days of the date of this Deed.
In summary terms, in the present action, the Plaintiffs contend that cl 2.7(b), properly construed, requires the Marshall Parties to prepare accounts for the joint ventures, sell the assets subject to the joint ventures, pay the liabilities of the joint ventures and distribute the balance as profits. The Marshall Parties in substance construe cl 2.7(b) in the same terms. However, they contend that once the remainder of the 2020 Deed has been given effect to, cl 2.7(b) in practical effect only requires the Marshall Parties to prepare accounts for the joint ventures, which they have done.
On 23 July 2025, I made orders that the proper construction of cl 2.7(b) be determined as a preliminary issue and made programming orders.
At the hearing of the trial of the preliminary issue, the Plaintiffs read and relied on an affidavit of Mr Lyster sworn 18 August 2025 (Lyster Affidavit).
The Marshall Parties read and relied on the affidavits of:
(a)Mr Marshall sworn 25 October 2024 (2024 Marshall Affidavit);
(b)Mr Marshall sworn 9 September 2025 (2025 Marshall Affidavit);
(c)Troy Figliomeni, the accountant retained by the Marshall Parties, affirmed 10 September 2025 (2025 Figliomeni Affidavit);
(d)Mr Figliomeni affirmed 25 October 2024 (2024 Figliomeni Affidavit).
The 2024 Marshall Affidavit and the 2024 Figliomeni Affidavit were filed in relation to an earlier summary judgment application.
The most recent versions of the pleadings which define the positions of the parties are the Substituted Statement of Claim filed 20 August 2025 (Claim) and the Amended Defence filed 14 August 2025 (Defence). Both parties filed written submissions.[1]
[1] Plaintiffs' Submissions on Preliminary Issue filed 19 August 2025 (Plaintiffs' Submissions); Defendants' Submissions on Preliminary Issue filed 10 September 2025 (Defendants' Submissions).
In the end, I accept the construction of cl 2.7(b) advanced by the Marshall Parties, which, as I have said, was to the same practical effect as the approach proposed by the Plaintiffs.

Principles by which contracts are construed

In Black Box Control Pty Ltd v TerraVision Pty Ltd the Court of Appeal summarised the general principles applicable to the construction of contracts in writing emerging from decisions of the High Court in the following terms:[2]
[2] Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42] (Reasons of the Court) (Black Box) (references omitted).
(1)The process of construction is objective. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean.
(2)The construction of a contract involves determination of the meaning of the words of the contract by reference to its text, context and purpose.
(3)The commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole. Extrinsic evidence may nevertheless assist in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, its background, the context and the market in which the parties are operating.
(4)Extrinsic evidence may also assist in determining the proper construction where there is a constructional choice, although … the question of whether matters external to a contract can be resorted to in order to identify the existence of the constructional choice … [has not been determined].
(5)If an expression in a contract is unambiguous and susceptible of only one meaning, evidence of surrounding circumstances cannot be adduced to contradict its plain meaning.
(6)To the extent that a contract, document or statutory provision is referred to, expressly or impliedly, in an instrument, that contract, document or statutory provision can be considered in construing the instrument, without any need for ambiguity or uncertainty of meaning.
(7)There are important limits on the extent to which evidence of surrounding circumstances (when admissible) can influence the proper construction of an instrument. Reliance on surrounding circumstances must be tempered by loyalty to the text of the instrument. Reference to background facts is not a licence to ignore or rewrite the text.The search is for the meaning of what the parties said in the instrument, not what the parties meant to say.
(8)There are also limits on the kind of evidence which is admissible as background to the construction of a contract, and the purposes for which it is admissible. Insofar as such evidence establishes objective background facts known to the parties or the genesis, purpose or objective of the relevant transaction, it is admissible. Insofar as it consists of statements and actions of the parties reflecting their actual intentions and expectations it is inadmissible. Such statements reveal the terms of the contract which the parties intended or hoped to make, and which are superseded by, or merged into, the contract.
(9)An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience.However, it must be borne in mind that business common sense may be a topic on which minds may differ.
(10)An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable.If possible, each part of an instrument should be construed so as to have some operation.
(11)Definitions do not have substantive effect. A definition is not to be construed in isolation from the operative provision(s) in which the defined term is used. Rather, the operative provision is ordinarily to be read by inserting the definition into it.

This summary has been adopted by the Court of Appeal on multiple occasions.[3]
[3] In recent years: Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [2025] WASCA 82 [114] (judgment of the court); Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171 [67] (Beech & Vaughan JJA); Recce Pharmaceuticals Ltd v Ian David Brown [2022] WASCA 66 [57] (judgment of the court); Chevron (TAPL) Pty Ltd v Pilbara Iron Company (Services) Pty Ltd [2021] WASCA 193 [37] (judgment of the court); McCleary v Dien Australia Pty Ltd [2021] WASCA 272 [190] (Tottle J); GR Engineering Services Ltd v Investment Ltd [2021] WASCA 136 [96] (Quinlan CJ & Beech JA); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130 [399] (judgment of the court); Freedom Willetton Pty Ltd vCommissioner of State Revenue [2021] WASCA 38 [83] – [84] (judgment of the court); Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd (No 2) [2020] WASCA 201 [105] (judgment of the court).
Neither counsel drew my attention to any additional principle of relevance or recent contrary authority. Consequently, I adopt the principles set out in Black Box.

2020 Deed

A copy of the 2020 Deed is attachment GRL-3 to the Lyster Affidavit.
Aside from the Plaintiffs and the Marshall Parties, there are seven other parties. One is Downstream Nominees Pty Ltd (Downstream). The Plaintiffs and Downstream are defined in the 2020 Deed as the Lyster Parties. The remaining six parties are defined as the Gilpin Parties. One of these is Gilpin Holdings Pty Ltd (Gilpin).
The phrase 'First Joint Venture' is defined in cl 1.1 to mean 'the joint venture as defined in the Marshall Parties' defence and counterclaim which, in context, must be taken to mean the defence and counterclaim in the 2018 Action. This pleading is not in evidence. However, it is common ground that it is a reference to the contract pleaded in Claim par 3, with the amendments pleaded in pars 7 and 8:[4]
3.By a written contract made on 12 March 2003, the plaintiffs (the Lysters) and Landbank as trustee for the Karakara Trust agreed to form an unincorporated first joint venture to develop Lot 24 of Plan 24067, being the land in Certificate of Title Volume 2211 Folio 156, and Lot 472 on Plan 2342, being the land in Certificate of Title Volume 769 Folio 83.
…
7.By a written contract made on 5 June 2003, the Lysters and Landbank as trustee for the Karakara Trust agreed to include in the first joint venture Lots 21-3 on Plan 24067, being the land in Certificate of Title Volume 2211 Folios 153-5.
8.By a written contract made on 3 February 2006, the Lysters and Landbank as trustee for the Karakara Trust agreed to include in the first joint venture Lot 26 on Plan 24067, being the land in Certificate of Title Volume 2211 Folio 158.
A copy of the contract in Claim par 3 is attachment GRL-1 to the Lyster Affidavit.
[4] See Defence par 3, the first variation is not admitted (par 8) and the second variation appears to be admitted in substance (par 9).
There is a dispute in the present action as to the terms and effect of the First Joint Venture.
The phrase 'Second Joint Venture' is defined in cl 1.1 to mean 'the joint venture as defined in the Marshall Parties' defence and counterclaim'. Again, it is common ground that this is a reference to the contract pleaded in Claim par 9: [5]
9.By a contract made on a date between 12 March 2003 and 13 March 2007, particulars of which may be provided after discovery, Downstream Nominees Pty Ltd as trustee for the A Trust and G Trust agreed to form an unincorporated second joint venture to develop Lot 25 of Plan 24067, being the land in Certificate of Title Volume 2211 Folio 157
The contract by which the Second Joint Venture was created is referred to in recital F to a deed dated 13 March 2007 which is attachment GRL‑2 to the Lyster Affidavit.
[5] Defence, par 10.
There is also a dispute in the present action as to the terms and effect of the Second Joint Venture.
It is apparent from the terms of the 2020 Deed that it deals with some of the land the subject of the First Joint Venture and the Second Joint Venture.
'Lot 9' is defined in cl 1.1 to be Lot 9 on Plan 4850 Title Volume 2201 Folio 87. 'Lot 92' is defined in cl 1.1 to mean Lot 92 on Diagram 100666 Title Volume 2201 Folio 873. Clause 2.1 of the 2020 Deed provides:
Subject to the parties complying with the terms of this Deed, the Marshall Parties and Gilpin Parties release all and any Claims that they have in relation to Lot 9 and Lot 92.
The term 'Claims' is defined in cl 1:1:
Claims includes any claim, demand, complaint, cause of action, cross-claim (and counterclaim), action , suit or proceeding, whether present or contingent, which the Parties have now or at any time after may have or which, but for the execution of this Deed, could or may have had against each other in any way, including in relation to or in connection with the Proceedings or its subject matter, the First Joint Venture and the Second Joint Venture and any Loan, wherever and whenever arising , whether known or unknown at the time of execution of this Deed and anything arising from the Proceedings…
'Lot 26' is defined in the 2020 Deed as 'Lot 26 on Plan 24607 Title Volume 2211 Folio 158' (Lot 26). This is the same parcel of land referred to in Claim par 8 (quoted at [14]) as being included in the First Joint Venture. Clause 2.2 of the 2020 Deed provides:
Subject to the parties complying with the terms of this Deed, the Lyster Parties, Marshall Parties and Gilpin Parties release all and any Claims that they have in relation to Lot 26.
By cl 2.6 the Lyster Parties agreed to transfer Lot 26 to Landbank, in return for which they would be paid $25,000 at settlement.
Lot 9002 is defined in cl 1.1 to mean Lot 9002 on Deposited Plan 406255 Title Volume 2924 Folio 158. Lot 9002 was previously Lots 21-3 on Plan 24067, being the land in Certificate of Title Volume 2211 Folios 153-5.[6] As set out in Claim par 7, the Lyster Parties assert that Lot 21 was subject to the First Joint Venture. The 2020 Deed at cl 2.3 provides that:
Subject to the parties complying with the terms of this Deed, the Marshall Parties and the Lyster Parties release all and any Claims that they have in relation to Lot 9002.
[6] 2025 Marshall Affidavit, par 4.1.2.
Lot 543 is defined in cl 1.1 to mean Lot 543 of Deposited Plan 67059 Title Volume 2760 Folio 69. Lot 543 was previously Lot 21 on Plan 24067, being the land in Certificate of Title Volume 2211 Folios 153.[7] As set out in Claim par 7, the Lyster Parties assert that Lot 21 was subject to the First Joint Venture. 2020 Deed cl 2.4 provides that:
Subject to the parties complying with the terms of this Deed, the Marshall Parties and the Lyster Parties release all and any Claims that they have in relation to Lot 543.
[7] 2025 Marshall Affidavit, par 4.1.2.
By cl 2.5, the Lyster Parties and the Marshall Parties agreed that Gilpin was entitled to sell and/or subdivide Lots 543 and 9002.
There is then cl 2.7, which in full provides:
2.7Joint Ventures
(a)The Marshall Parties agree and confirm that they shall be liable for payment of all accounting fees incurred in relation to the First Joint Venture and Second Joint Venture;
(b)The Marshall Parties shall, at their sole cost, dissolve and or wind up the First Joint Venture and Second Joint Venture within 30 days of the date of this Deed;
(c)The Lyster Parties hereby immediately revoke any and all powers of attorney granted to the Marshall Parties, Downstream or any one of them pursuant to the First Joint Venture and Second Joint Venture; and
(d)The Marshall Parties agree and confirm that any guarantee provided by the Lyster Parties in relation to the First Joint Venture and Second Joint Venture are herein revoked and of no further force and effect.
Clause 2.8 provides a process for the deregistration of Downstream.
Clause 2.9 then provides:
2.9Within fourteen (14) days of the date of this Deed, each of the following Parties agree, at their own cost, to execute and lodge such documents as may be required to release any and all security interests that they have over the following properties:
(a)The Marshall Parties and Gilpin Parties in relation to Lot 9 and Lot 92;
(b)The Marshall Parties, Lyster Parties and Gilpin Parties in relation to Lot 26; and
(c)The Marshall Parties and Lyster Parties in relation to Lot 9002 and Lot 543.
The remaining clauses of the Deed contain releases and bars as well as the mechanics of settlement. Of particular note is the release in cl 3.2:
3.2Subject to clause 3.1 above and subject to compliance with the terms of this Deed (including but not limited to clauses 2.5 and 2.9), the Parties:
(a)unconditionally and irrevocably release and forever discharge each other from and against all Claims; and
(b)undertake that they will not issue any proceedings in law or in equity against any other Party in any way relating to or in connection with the subject matter of the Proceedings, the First Joint Venture, the Second Joint Venture and any Loan or the facts and circumstances giving rise to the Proceedings, save for enforcement of the terms of this Deed.

Pleadings and submissions of the Lyster Parties

The interpretation advanced by the Lyster Parties is set out in Claim par 17:
There were express terms of the agreement pleaded in the preceding paragraph, properly construed, in effect, that:
17.1on or before 7 January 2021, the defendants would, at their cost, wind up or cause to be wound up (cl 2.7(b)):
17.1.1the first joint venture by performing the obligations pleaded in paragraph 12; and
17.1.2the second joint venture by performing the obligations pleaded in paragraph 15; and
17.2subject to compliance with the terms of the deed (including cl 2.7(b)), the parties would release each other from all claims relating to the subject matter of the proceedings, the first joint venture, the second joint venture, or any loan from [the Gilpin Parties] to Marshall, 87 Bay View, Landbank or the Lysters (3.2(a)).
Claim par 12 is a plea of an implied term in the First Joint Venture in the following terms:
12.It was an implied term of the contract pleaded in paragraph 3 on being varied as pleaded in paragraph 11 that if the first joint venture was to be wound up, Landmark, as the manager of the first joint venture, would cause:
12.1an unaudited profit and loss statement, cash flow statement, and balance sheet to be prepared for the first joint venture for the preceding quarter, and the preceding financial year or financial year to date;
12.2the assets the subject of the first joint venture to be sold; and
12.3the realised funds of the first joint venture to be used to:
12.3.1first, meet the costs of developing land and operating the first joint venture, including the interest payments and principal repayments for that amount of any loan used to acquire and develop the land; and
12.3.2secondly, distribute any balance as profits to the participants in equal shares.

Claim par 15 is a plea of an implied term in the Second Joint Venture Agreement in the following terms:
15.It was an implied term of the contract pleaded in paragraph 10 on being varied as pleaded in paragraph 14 that if the second joint venture was to be wound up, Landbank, as the manager of the second joint venture, would cause:
15.1an unaudited profit and loss statement, cash flow statement, and balance sheet to be prepared for the second joint venture for the preceding quarter, and the preceding financial year or financial year to date;
15.2the assets the subject of the second joint venture to be sold; and
15.3the realised funds of the second joint venture to be used to:
15.3.1first, meet the costs of developing land and operating the second joint venture, including the interest payments and principal repayments for that amount of any loan used to acquire and develop the land; and
15.3.2secondly, distribute any balance as profits to the participants in equal shares
The Lyster Parties submit that it is unlikely that the words 'dissolve' and 'wind up' in cl 2.7(b) were intended to have different meanings. They consider it sufficient to refer to the words 'wind up'.
The Lyster Parties submit that the words 'wind up' plainly denote an outcome, being the end of the joint venture. They submit that this is also clear from the object of the 2020 Deed which, discerned from the deed itself, is to end the legal relationship between the adverse parties to the deed (except for those obligations which, by their nature, would survive that end). The term 'wind up' must also denote a procedure to effect that outcome.
The Lyster Parties submit 'winding up' involves different procedures in different contexts, referring to corporations and partnerships. By parity of reasoning, cl 2.7(b) obliged the Marshall Parties to wind up the joint ventures by performing the obligations that the terms of the joint venture agreements setting out the winding up procedure otherwise imposed on the party tasked with the winding up. That construction, in turn, directs the exercise to the joint venture agreements to identify those obligations.
The Lyster Parties submit despite their prolixity, the joint venture agreements do not contain any express terms setting out the procedure for winding up the joint ventures. There were express terms of each joint venture agreement dealing with the recording and distribution of proceeds from developing land. Those express terms were, in substance and effect, that:
(a)Landbank, as manager, would prepare, for the joint venture committee's approval, an unaudited profit and loss statement, cash flow statement, and balance sheet for the joint venture within 30 days of 31 March and 30 September, 60 days of 31 December, and 90 days of 30 June, for the preceding quarter and financial year or financial year to date;
(b)the joint venture would use the proceeds from developing land to first, meet the costs of developing the land and operating the joint venture and, secondly, distribute any balance as profits to the joint venturers in equal shares.
Given the omission of express terms dealing with winding up in the joint venture agreements, the Lyster parties say that it was necessary for terms to be implied. Until this point in the analysis, it has involved a consideration of the implications arising from and supplementing the words 'wind up' in cl 2.7(b).
I have set out the implied terms pleaded at [30] and [31].
The preliminary issue is limited to determining the proper construction of cl 2.7(b). The issue of whether terms should be implied into the contracts by which the First Joint Venture and the Second Joint Venture were created is beyond the scope of the preliminary issue.

Pleadings and submissions of the Marshall Parties

In the Defence, the Marshall Parties plead a fuller version of the facts and circumstances leading up to the execution of the 2020 Deed. They deny that the contracts creating the First Joint Venture and the Second Joint Venture contain the implied terms asserted by the Lyster Parties.[8]
[8] Defence, par 17.
The Marshall Parties plead the effect of the 2020 Deed in the following terms in the Defence pars 20 and 21:
20.The defendants deny paragraph 16 of the Statement of Claim and say that by a written Deed of Settlement and Release dated 8 December 2020 ( the December 2020 Deed) entered into between Gilpin, Lyster, Mr Marshall, Downstream, 87 Bayview, Landbank, Mr Leonard Vincent Blyth, Ms Jennifer Anne Allen, Mr Alistair Leon Blyth, Cluster Nominees Pty Ltd as trustee for the Cluster Nominees Superannuation Fund and Hew Nominees Pty Ltd as trustee for the Hew Family Trust and A L Blyth (ACN 147 796 147) as trustee for the Blyth Consulting Trust trading as Blyth Partners, the parties to the December 2020 Deed agreed to settle a dispute the subject of the Supreme Court of Western Australia proceedings CIV 2275 of 2018, commenced by Gilpin over payment of money lent for the purposes of the First Joint Venture and the Second Joint Venture, on term by which:
20.1the parties associated with the defendants (the Marshall Parties) and the Gilpin parties released all claims in relation to Lot 9 and Lot 92;
20.2the parties associated with the plaintiff (the Lyster Parties), the Marshall Parties and the Gilpin parties released all claims they had in relation to Lot 26;
20.3the Marshall Parties and the Lyster Parties released all claims they had in relation to Lot 9002, the whole of the land and Certificate of Title Volume 2924 Folio 158, formerly being Lot 21 (Lot 9002);
20.4the Marshall Parties and the Lyster Parties released all claims in relation to Lot 543 whole of the land in Certificate of Title Volume 2760 Folio 69, formerly being Lot 21 (Lot 543);
20.5the Lyster Parties and the Marshall Parties agreed that Gilpin was entitled to subdivide and/or sell Lot 9002 and Lot 543 and to use the proceeds of sale to reduce sums owed to Gilpin;
20.6the Lyster parties agreed to, and did, transfer Lot 26 to Landbank;
20.7the Marshall Parties and the Gilpin parties agreed to release any securities over Lot 9 and Lot 92;
20.8the Marshall Parties, Gilpin parties and Lyster Parties agreed to release any securities over Lot 26 and the Marshall Parties and Gilpin parties agreed to release any securities over Lot 9002 and Lot 543; and
20.9the Gilpin parties were entitled to enforce rights against the Lyster Parties in relation to Lot 9002 and Lot 543.
21.The consequence of the December 2020 Deed was that:
21.1the First Joint Venture had no beneficial interest in any land;
21.2the Second Joint Venture had no beneficial interest in any land;
21.3the First Joint Venture and the Second Joint Venture ceased to hold any lots on terms the subject of the performance of the First Joint Venture Agreement and the Second Joint Venture Agreement;
21.4Gilpin assumed control for the sale of any land the subject of securities to reduce the sums owed to it and was entitled to retain the proceeds of sale of any such land;
21.5Lyster remained bound by the Lyster Guarantee and was indebted to the Second Joint Venture in the sum of $2,042,000.00.
As to the effect of cl 2.7, the Marshall Parties plead in Defence par 24:
In accordance with the obligations under clause 2.7 of the December 2020 Deed, by email dated 15 December 2020, Mr Marshall instructed Mr Figliomeni to undertake the dissolving or winding up the First Joint Venture and the Second Joint Venture in accordance with clause 2.7 of the December 2020 Deed, a copy of which was provided.
The Defence in pars 25 to 27.6 sets out the financial information relating to the First Joint Venture, concluding at pars 27.7 and 27.8:
27.7For purposes of winding up or dissolving the First Joint Venture, Armada Accountants recorded the First Joint Venture's financial statements as at 31 December 2020 in the First Joint Venture 2020 Statements as follows:
27.7.ANo assets recorded.
27.7.BNo liabilities recorded.
27.7.1A total income position recorded at $4,371,741.00 made up of:
(a)forgiven loans from the Second Joint Venture valued recorded at $3,817,742.00; and
(b)forgiven loans from Lyster recorded at $553,999.00.
27.7.2A total expenses position recorded at $619,341.00 made up of:
(a)accounting fees recorded at $1,100.00;
(b)GST written off recorded at $237,880.00;
(c)interest on the joint venture loan recorded at $349,891.00; and
(d)interest on the Lyster Loan valued recorded at $30,470.00.
27.7.3After subtracting the total expenses position from the total income position, the First Joint Venture was left with a net profit position of $3,752,400.00 as at 31 December 2020 to be allocated in equal shares to the Karakara Trust and Lyster.
27.8The First Joint Venture's net profit position as at 31 December 2020 constituted solely of forgiven loans, not cash to be distributed.
The Defence in par 29 sets out the financial information relating to the Second Joint Venture, concluding at pars 29.7:
29.7For purposes of winding up or dissolving the Second Joint Venture, Armada Accountants recorded the Second Joint Venture's financial statements as at 31 December 2020 in the Second Joint Venture 2020 Statements as follows:
29.7.1A total income position valued recorded at $1,311,201.00 made up of:
(a)creditors written off recorded at $74,810.00;
(b)GST written off recorded at $271,927.00;
(c)interest received on a loan to the First Joint Venture recorded at $380,361.00; and
(d)a forgiven Gilpin loan recorded at $584,103.00.
29.7.2A total expenses position recorded at $5,655,473.00 made up of:
(a)accounting fees valued recorded at $1,100.00;
(b)depreciation of the Second Joint Venture property, plant and equipment (excluding freehold land) recorded at $39.00;
(c)a forgiven loan to the First Joint Venture recorded at $3,817,742.00;
(d)a forgiven loan to Lyster recorded at $1,836,120.00; and
(e)loss on disposal of fixed assets recorded at $472.00.
29.7.3After subtracting the total expenses position from the total income position, the Second Joint Venture had a net loss position of $4,344,271.00 as at 31 December 2020 to be borne in equal shares by the A Trust and G Trust.
29.7.4No assets recorded.
29.7.5No liabilities recorded.
The Marshall Parties then plead in the Defence pars 30 to 37:
30.The defendants say further that, as at 8 December 2020, there was no ongoing existing right to develop land, there being no land the subject of either of the joint ventures.
31.The financial statements for the First Joint Venture for the year ended 30 June 2017 valued the 'rights to development land' in relation to Lots 22, 23 and 26, being noncurrent fixed assets, at $2,799,911.00.
32.The financial statements for the First Joint Venture for the years ended 30 June 2018 and 2019 and the First Joint Venture 2020 Statements listed no properties subject of the First Joint Venture and listed, as a non-current asset as at 30 June 2020, the 'Rights to development land – Value at 30 June 2017'. As at 8 December 2020, the First Joint Venture had no land to develop.
33.As at 30 June 2020, the net asset position of the First Joint Venture was negative $953,505.00, and as at 31 December 2020 no assets were recorded, there being no assets to be realised.
34.If all assets needed to be realised as claimed by Lyster, this would have required Lyster to repay their loan debt of $2,042,000.00 to the Second Joint Venture. This outstanding loan amount, together with the outstanding loan amount of $553,999.00 from Lyster to the First Joint Venture, was forgiven.
35.Lyster was indebted to the Second Joint Venture under the Lyster Guarantee.
36.By reason of the foregoing, there being no capacity to cause loans between the joint ventures to be repaid, there were no assets to dispose of nor profits to distribute, and on a proper construction of clause 2.7(b) of the December 2020 Deed, Armada Accountants was not required to take the steps pleaded in paragraph 23 and 24 of the Statement of Claim for the purpose of winding up and or dissolving either the First Joint Venture or the Second Joint Venture.
37.The defendants deny that the plaintiffs are liable to the plaintiffs as alleged or at all.
In submissions, counsel for the Marshall Parties makes the point that the Joint Ventures were commercial dealings of the parties who came together to develop, subdivide and sell land that each separately owned. Significantly, the joint venture parties did not create a legal vehicle through which to operate or to own the lots of land. The joint ventures could not, and did not, hold assets and liabilities in their own rights. Only the joint venture parties, by virtue of their legal personalities, could and did so.
Their position in summary terms is:[9]
8.Per clause 2 of the December 2020 Deed, all remaining lots of land were to be released from the First Joint Venture and Joint Venture parties' secured interests in relation to those lots discharged. No lots were subject to the Second Joint Venture as at the date of the December 2020 Deed.
9.Per clause 3.2(a) of the December 2020 Deed, the parties, including the plaintiffs and defendants, agreed to unconditionally and irrevocably release and forever discharge each other from and against all claims in relation to the Joint Ventures.
10.Following the execution of the December 2020 Deed, no properties were subject of the Joint Ventures and all claims, including claims for any monetary amounts owing, in relation to the Joint Ventures had been released by the parties. The defendants instructed their accountants to wind up the Joint Venture accounts on that basis. The accountants did so.
[9] Defendant's Submissions, pars 8, 9 and 10.
Counsel for the Marshall Parties submits that the starting point for the proper construction of cl 2.7(b) is consideration of the terms 'dissolve' and 'wind up'. The former is defined by the Macquarie Dictionary as the act of breaking up an assembly or organisation. The term has historically been used in relation to both incorporated and non‑incorporated entities. The common denominator that emerges from the dissolution of companies and partnerships is that something is brought to an end.
In relation to 'winding up', this is a phrase which is commonly used in relation to companies and partnerships. The winding up of a company has been described by the courts as a process that 'consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled'.[10]
[10]Re Crusts'n'Crumbs Bakers (Wholesale) Pty Ltd [1992] 2Qd R 76, 78 (McPherson SPJ); Palmer v Ayres; Ferguson v Ayres (2017) 91 ALJR 325 [87] (Gageler J).
Dissolution, or 'deregistration', necessarily follows a company being wound up. As for partnerships, the wind-up process follows dissolution and entails the application of partnership property to payment of debts and liability of the firm before any surplus assets are distributed.[11] The most basic steps required to wind up a partnership are the same as those required to wind up a company: any assets are collected, realised and applied to liabilities, costs and expenses before net proceeds are distributed.
[11] Partnership Act 1958 (WA) s 36.
As to the linking words 'and or' the Marshall Parties submit that properly construed they mean 'and'. The process of dissolution and the process of winding up are two distinct processes.[12] So their position is:[13]
32.It is the defendants' position that the terms 'dissolve' and 'wind up' have unambiguous settled meanings in terms of the most basic steps which the expressions denote:
32.1'dissolve' means to do what is necessary to bring the subject matter to an end; and
31.2'wind up' means to collect any assets of the subject matter, realise and reduce those assets to money and apply that money to pay the subject matter's creditors, costs and expenses before distributing net proceeds.
[12] Defendants' Submissions, par 26.
[13] Defendants' Submissions, par 32.
Counsel then makes the point that, as for what the Marshall Parties were actually required to do to 'dissolve and wind up' the joint ventures, this process necessarily had to be informed by both the subject matter of clause 2.7(b), being the unincorporated joint ventures themselves and the 2020 Deed as a whole.
In relation to the 2020 Deed, counsel for the Marshall Parties referred to the substantive provisions surrounding cl 2.7(b), which I have set out at [19] to [28], summarising their effect as follows:[14]
[14] Defendants' Submissions, pars 47 to 50.
47.Significantly for purposes of these proceedings, the plaintiffs and defendants agreed as follows under the December 2020 Deed:
47.1the plaintiffs and the defendants released any and all Claims and securities they had in relation to the Joint Ventures and Lots 26, 543 and 9002 (clauses 2.2, 2.3, 2.4 and 2,9);45
47.2the plaintiffs agreed to transfer Lot 26 to the second defendant (clause 2.6).
47.3the plaintiffs and the defendants agreed Gilpin Holdings Pty Ltd was entitled to subdivide and/or sell Lots 543 and 9002 (clause 2.5);
47.4the plaintiffs and defendants unconditionally and irrevocably released and forever discharged each other from and against all Claims in relation to the Joint Ventures, including claims for amounts outstanding (clause 3.2(a));48 and
47.5the plaintiffs undertook it would not issue any proceedings against the defendants in any way or relating to or in connection with the Lyster Loan (clause 3.2(b)),49
(together, Key Provisions).
48.The Key Provisions saw to the practical dissolution of the Joint Ventures: no lots of land were left under the Joint Ventures. Claims for amounts owing in relation to the Joint Ventures, including the Lyster loan, had been released by the parties, including the plaintiffs and the defendants.
49.No assets were left to realise and no liabilities were left to be repaid. Therefore, the literal 'wind up' steps of realising assets before repaying liabilities could not be performed by the defendants.
50.All that was left for the defendants to do under clause 2.7(b) was instruct their accountants to settle the Joint Venture accounts.
Counsel concludes: [15]
[15] Defendants' Submissions, pars 47 to 50.
51.Based on his instructions from the defendants, and the December 2020 Deed, Mr Troy Joseph Figliomeni of Armada Accountants prepared the First Joint Venture 2020 Statements and Second Joint Venture 2020 Statements as follows:
51.1As the last of the FJV Development Lots had left the First Joint Venture, the First Joint Venture 2020 Statements no longer recorded 'rights' with respect to FDV Development Lots at value.
51.2The amounts owing between the Joint Ventures were amalgamated before the outstanding amount, being $3,817,742.00 owing from the First Joint Venture to the Second Joint Venture, was written off as forgiven.
51.3The plaintiffs' and defendants' mutual release of all Claims in relation to the Joint Ventures, including claims for the Lyster Loan and other amounts outstanding, were reflected as follows:
51.3.1The amount recorded as owing on the Lyster Loan, being $533,999.00, was recorded as forgiven under the First Joint Venture 2020 Statements.
51.3.2The amount recorded as owing from the plaintiffs to the Second Joint Venture, being $1,836,120.00 was recorded as forgiven under the Second Joint Venture 2020 Statements.
52.The proper construction of clause 2.7(b) required nothing further.

Determination

I agree with the observation by counsel for the Marshall parties that it would make more sense if the Lyster Parties recast their implied terms as the Marshall Parties' performance obligation under cl 2.7(b).[16] Once that is done, the position of the Lyster Parties set out at [30], [31] and [34] is more or less the same as the position of the Marshall Parties set out at [50].
[16] Defendants' Submissions, par 32.
I accept the analysis of the Marshall Parties. In my view, a reasonable person would have understood:
(a)the term 'dissolve' to mean to do what is necessary to bring the subject matter to an end;
(b)the phrase 'wind up' to mean to collect any assets of the subject matter, realise and reduce those assets to money and apply that money to pay the subject matter's creditors, costs and expenses before distributing net proceeds (or allocating net losses); and
(c)the linking words 'and or' to be conjunctive, requiring the two joint ventures to be both wound up and dissolved.
This construction reflects the text, context and purpose of cl 2.7(b). It also gives effect to the evident commercial purpose of the 2020 Deed being to put in place a final resolution of all outstanding claims in relation to the First Joint Venture and the Second Joint Venture.
So construed, cl 2.7(b) required the Marshall Parties to, for each joint venture:
(a)identify any assets remaining the subject of joint venture obligations (if any);
(b)realise and reduce those assets to money in accordance with the terms of the relevant joint venture;
(c)apply that money to meet the liabilities of the joint venture in accordance with the terms of the relevant joint venture;
(d)distribute the net proceeds, or allocate the net losses, in accordance with the terms of the relevant joint venture; and
(e)to do whatever else is necessary to bring each joint venture to an end.
The obligation in [57](e) would, for example, include the preparation of financial statements for each joint venture. Another example would be to close any bank accounts maintained by each joint venture.
Significantly, cl 2.7(b) applies in the context of the remainder of the 2020 Deed. The remaining substantive provisions of the 2020 Deed altered the assets subject to joint venture obligations and the liabilities of the joint venture participants. There is a dispute between the parties as to which of these obligations have effect before the winding up and dissolution of each joint venture pursuant to cl 2.7(b) is to occur, and which only take effect after the winding up and dissolution has occurred. The resolution of this issue of construction is beyond the scope of the preliminary issue.
For the assistance of the parties going forwards, I do, however, make two further observations.
The first is that in light of the interpretation of cl 2.7(b) which I have set out at [55], it is difficult to see how there could be any need to imply a term into the contracts creating each joint venture in order to give each contract business efficacy.[17]
[17] Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 277 CLR 115 [113] (Edelman and Steward JJ).
The second is that in the substituted statement of claim which the Lyster Parties will inevitably have to file in response to this decision, they will need to identify the specific obligation in each joint venture contract which they say that the Marshall Parties have not given effect to in winding up and dissolving each joint venture. Moreover, the obligation would need to be one that survives the other substantive provisions of the 2020 Deed, properly construed. The Marshall Parties are no closer to knowing the position of the Lyster Partes on the issues which I identified at the conclusion of my earlier decision in Lyster v 87 Bayview Terrace Pty Ltd than they were in April of this year.[18]
[18] Lyster v 87 Bayview Terrace Pty Ltd [2025] WASC 136 [45] (Gething J).
I will hear from the parties as to costs. My preliminary view is to reserve the costs of the determination of the preliminary issue as the issues are inexorably linked to the merits of the action generally.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OB
Associate to the Hon Justice Gething
2 OCTOBER 2025