Historical Holdings Pty Ltd v Hills Health Pty Ltd - [2024] WASC 489 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HISTORICAL HOLDINGS PTY LTD -v- HILLS HEALTH PTY LTD [2024] WASC 489 (S)
CORAM:   SEAWARD J
HEARD:   14 AUGUST 2025
DELIVERED          :   5 SEPTEMBER 2025
FILE NO/S:   CIV 1906 of 2024
BETWEEN:   HISTORICAL HOLDINGS PTY LTD
Plaintiff
AND
HILLS HEALTH PTY LTD
Defendant

Catchwords:

Practice and procedure - Costs - Special costs order - Whether matter of 'usual difficulty, complexity or importance' - Turns on own facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024
Legal Profession Uniform Law Application Act 2022 (WA)
Supreme Court Act 1935 (WA)

Result:

Defendant's application for special costs order dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	A Willinge
Defendant	:	C Russell SC

Solicitors:

Plaintiff	:	DLA Piper
Defendant	:	Corrs Chambers Westgarth

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

BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116
Bolt v Bolt [2023] WASC 162 (S)
Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Heartlink Ltd v Jones (as Liquidator of HL Diagnostics Pty Ltd) [2007] WASC 254 (S)
Historical Holdings Pty Ltd v Hills Health Pty Ltd [2024] WASC 489
INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S)
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)

SEAWARD J:

Introduction

On 20 December 2024, I delivered my reasons for decision in relation to Historical Holdings' application for pre-action discovery from Hills Health.[1]
[1] Historical Holdings Pty Ltd v Hills Health Pty Ltd [2024] WASC 489 (Primary Reasons).
Historical Holdings were successful in their application for pre‑action discovery.
In my orders dated 20 December 2024, I ordered (relevantly) that Historical Holdings pay Hills Health's costs of the pre‑action discovery application on a party‑party basis, to be taxed if not agreed.
On 7 February 2025, Hills Health filed a chamber summons, seeking a special costs order pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law). The hearing of that chamber summons was deferred whilst the parties conferred on issues regarding discovery and inspection.
Hills Health has amended the orders sought in their chamber summons and now seek the following orders:
1.Pursuant to s 141(3) of the Uniform Law, the maximum allowances specified in the 'Time' and '$' columns in Table B, of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 do not apply for the purpose of a taxation under order 3 of the orders made by the Honourable Justice Seaward on 20 December 2024 in relation to the total hours and total amounts of scale item 11(a); and
2.Historical Holdings pay Hills Health's costs of this chamber summons.
The chamber summons is supported by the affidavit of Michelle Elizabeth Gordon affirmed on 7 February 2025 (Gordon Affidavit).
These reasons should be read with my decision in Historical Holdings Pty Ltd v Hills Health Pty Ltd [2024] WASC 489 (Primary Reasons).
For the following reasons, I will not grant the application for orders under s 141(3) of the Uniform Law.

Legal Principles

The Supreme Court has a broad discretion to award costs pursuant to s 37 of the Supreme Court Act 1935 (WA). That discretion must be exercised judicially.
In the present case, for the oral reasons I gave on 20 December 2024, I ordered that Historical Holdings pay Hills Health's costs of the application for pre‑action discovery on a party‑party basis to be taxed if not agreed.
Order 66 r 51(1) provides that in a particular action or matter, the court may make an order under s 141(3) of the Uniform Law. Section 141 of the Uniform Law relevantly provides:
(1)The following are regulated by an applicable costs determination —
(a) the taxation of bills of law practices;
(b) any other aspect of the costs charged by law practices.
…
(3)Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do any or all of the following —
(a) order the payment of costs above those fixed by the determination;
(b) fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
(4) Subsection (1) does not limit the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court, judicial officer or taxing officer the amount of costs allowed.
When considering such an application, it is important to identify the matter in question. In this case, it is the application for pre‑action discovery.
The scale which applies to the work carried out by the practitioners engaged on this matter is the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (2024 Determination). Item 11(a) of the 2024 Determination is extracted below:
The legal principles concerning when a special costs order may be made under s 141(3) of the Uniform Law are not in dispute and have been detailed in numerous authorities of this court (including those addressing the equivalent provision under earlier legislation). In particular, see Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2],[2] and the helpful summaries by Vandongen J (as his Honour then was) in Bolt v Bolt[3] and Lundberg J in INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3].[4]
[2] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] ‑ [17].
[3] Bolt v Bolt [2023] WASC 162 (S) [8] - [19].
[4] INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S) [36].
It is not necessary to repeat the legal principles in detail. Rather, it is sufficient to observe that the two key issues to be determined are as follows:
1.Is the maximum amount allowable under the applicable costs determination inadequate, in the sense there is a fairly arguable case that, on a taxation of costs, costs may properly be allowed in an amount greater than the maximum amount?; and
2.Does the inadequacy of the costs allowable under the costs determination arise because of the 'unusual difficulty, complexity, or importance of the matter'?
Hills Health does not submit that the pre-action discovery application was unusually difficult, but rather relies on the complexity and importance of the matter.
In terms of complexity, there are limited authorities addressing the precise meaning of the term. However, the references to complexity in the authorities are consistent with complexity arising from either the legal or factual issues raised in the matter.[5]
[5] See for example Heartlink Ltd v Jones (as Liquidator of HL Diagnostics Pty Ltd) [2007] WASC 254 (S) [24].
In BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5], Archer J (as her Honour then was) considered the meaning of the word 'importance' in the context of special costs applications as follows:[6]
[6] BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116 [75] ‑ [79] (citations omitted).
75Cases in which importance has been found include cases which involve the risk of significant professional damage, test cases, or cases which involve enormous sums of money.
76Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) was a case in the first category, involving serious allegations against liquidators. In Heartlink, Martin CJ said that:
'By reference to "importance" in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issue that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.'
77This passage was endorsed by the Court of Appeal in Sino Iron [No 2].
78In Blatchford v Laine, Vaughan J commented on the passage as follows:
'His Honour's formulation involves a qualitative evaluation as to the significance of the matter. It requires an assessment of the weight, seriousness and gravity of the issues and controversy before the court. Often the question of importance will be answered as a matter of impression informed by experience. Outside of those relatively rare cases involving matters of public importance - where "importance" may well be obvious - the importance of the matter may be evident in the amount of the claim or the nature of the allegations that are being litigated.'
79It is plain from these authorities, and the context of s 141 and the Legal Profession Uniform Law Application Act as a whole, that a matter will not be 'important' in the required sense simply because a party considers it to be so. If it were otherwise, the test of importance would probably be satisfied in every litigated dispute.
80Further, I consider that a matter will not be 'important' in the required sense simply because the amount of money involved is large. It would depend on the circumstances.
In Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd,[7] Martin CJ observed that the role of the judicial officer in considering a special cost application (under the previous legislation) is as follows:
[O]nce an order is made for the taxation of costs, it is not appropriate for the court to usurp the function of the taxing officer. Rather, under s 280(2) of the Act, the function of the court is limited to setting the parameters within which the taxing officer will tax the relevant bill, providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. Because the quantum of costs to be allowed is to be determined by taxation, the powers conferred upon the court by s 280(2) of the Act are to be exercised as matters of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed.
[7] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [4].
Further, it is not in dispute that the disposition of a special costs application is addressed as a matter of impression, rather than matters of detailed evaluation, precision or science.

Evidence

The Gordon Affidavit sets out the legal fees billed to the defendant in relation to the pre‑action discovery application. These fees have been calculated by reviewing the time entries of the solicitors, the invoices issued by senior counsel, and identifying those relating to the application. Costs which were, in the opinion of Ms Gordon, not properly claimable were excluded, including any costs falling within order 2 of the costs orders I made on 20 December 2024 (which concerned the costs of complying with the order to provide discovery).
Those remaining costs were then allocated into seven separate stages of work as described and detailed in the Gordon Affidavit. It is not necessary to set out the details here, save to observe that the total costs incurred as recorded in the affidavit is $168,687.86.
Hills Health's submissions, then proceed to take the information provided in the Gordon Affidavit regarding the number of hours spent on the work in each of seven stages identified and calculated the amount using the rates under the 2024 Determination. This results in a figure of around $110,000, which is again in excess of the maximum allowed under item 11(a) of the 2024 Determination. Of that amount, approximately $17,000 (being the amount in stage 6) is in some way associated with the adjournment of the original hearing date. That application for an adjournment was heard on 14 November 2024 and in granting that adjournment, I ordered that Historical Holdings pay Hills Health's costs of the adjournment thrown away. Senior counsel for Hills Health explained that these costs had been included as it was not clear if a taxing officer would consider that all of these costs would fall within the scope of the 14 November 2024 costs order.

Issue 1 - is it fairly arguable that, on a taxation of costs, costs may properly be allowed in an amount greater than the maximum amount?

Submissions

The total amount of costs incurred by Hills Health is $168,687.86, which is well in excess of the maximum allowed under item 11(a) of the 2024 Determination, being $52,030. Senior counsel for Hills Health submits that even if the amount allocated for the adjournment hearing on 14 November 2024 is deducted, the amount of costs incurred is still in excess of the maximum amount allowed under item 11(a) of the 2024 Determination.
Hills Health relies on the affidavit evidence, and this court's ability to form an impression as to the work required to be undertaken, in support of its submissions that there is a fairly arguable case that, on a taxation, costs may properly be allowed in an amount greater than the maximum. Hills Health accepts that it has not put on detailed submissions as to the precise nature of the legal work undertaken and submits that this information is more appropriate to put on at the actual taxation.
Historical Holdings submits that the 2024 Determination allows for approximately $50,000 for an originating motion and the mere fact that Hills Health spent more than three times this amount is not of itself sufficient for the court to conclude that there is a fairly arguable case that, on a taxation, costs may properly be allowed in an amount greater than the maximum.
In terms of the affidavit evidence concerning the amount of costs incurred, Historical Holdings accepts that it is not appropriate to conduct a mini taxation at this stage. However, Historical Holdings submits that if regard is had to the explanation of the work undertaken, by reference to the seven stages, it is unclear how these stages of work would necessarily result in costs of the amount identified being incurred. Counsel submits that there is 'real cause to pause' before concluding that it is fairly arguable that the costs would be taxed at an amount greater than the maximum amount under the 2024 Determination.

Disposition

In considering the first question, it is not sufficient for a party to show it has incurred costs greater than those allowable under the relevant determination. It is necessary to have regard to the costs incurred in the context of the matter before the court.
Hills Health has not attached a draft bill of costs to their affidavit evidence. I accept that this is not fatal to the application. Whilst the Gordon Affidavit sets out the hours of work which were undertaken under seven separate stages, given the general nature of the descriptions, it is difficult from the affidavit itself to form any real impression as to whether it is fairly arguable that, on a taxation of costs, costs may be allowed in an amount that exceeds the maximum amount allowed under item 11(a) of the 2024 Determination.
Based on my knowledge of the matter, the materials filed on the application, the issues raised in the application, the conduct of the hearing and as a matter of impression, whilst I have some reservations, I have come to the conclusion that it is fairly arguable that, on a taxation of costs, an amount may be allowed in an amount that exceeds the maximum amount allowed under item 11(a) of the 2024 Determination.
In reaching this conclusion, I have had regard to the issues involved in the application. Historical Holdings sought pre‑action discovery of legal advice concerning a number of ASX announcements made by Hills Health. The application was on the basis that Historical Holdings may have a cause of action for a declaration that Hills Health engaged in misleading or deceptive conduct contrary to s 1041H and s 674A of the Corporations Act 2001 (Cth) (Corporations Act) and/or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth). Historical Holdings also claimed that it may have a cause of action against the former directors on the basis that either they were knowingly concerned in Hills Health's misleading or deceptive conduct or engaged in misleading or deceptive conduct themselves.
Hills Health's case was that Historical Holdings could not establish that it may have a cause of action against it because the cause of action identified was extinguished by the Deed of Company Arrangement (DOCA), and the pre-action application itself was barred by the DOCA.
In this context, the issues for consideration included the terms of the DOCA and the relevant provisions of the Corporations Act, and whether any of those provisions excluded any claim that Historical Holdings may have against Hills Health. It was also necessary, in this context, to consider the question of whether a bare declaration was excluded, and an associated question of standing.
The affidavit material filed in support of the application was in the vicinity of 800 pages. However, it has been appropriately accepted by Hills Health that the matter was not factually complex, with the majority of the affidavit consisting of the various attachments associated with the administration of Historical Holdings, including the DOCA. Nonetheless, it was necessary to review the affidavit material.
The hearing went for two hours and four minutes. The parties filed written submissions, being nine pages in length for Historical Holdings' primary submissions, seven pages in length for Hills Health's submissions and a further 12 pages for Historical Holdings' submissions in reply. Whilst this is not lengthy, I accept that the length of a hearing may be shortened in circumstances where there are written submissions addressing all relevant issues. This was certainly the case here. I also accept that the length of written submissions is not necessarily reflective of the amount of work involved in preparing those submissions, including all required legal research.
Accordingly, taking the above matters into account, I am satisfied that it is fairly arguable that, on a taxation of costs, costs may be allowed in an amount that exceeds the maximum amount allowed under item 11(a) of the 2024 Determination.

Issue 2 - complexity, or importance of the matter?

The second issue to consider is whether, the inadequacy in the maximum amount arises due to the complexity and importance of the application.
This issue involves consideration of whether the matter was complex or important, and then whether the inadequacy arises as a result of that complexity or importance.

Submissions

Hills Health submits that the matter was legally complex and important as it raised a number of issues including:
(a)the proper construction and effect of the provisions of the DOCA and whether Historical Holdings' claims had been extinguished by the DOCA or whether Historical Holdings might still have a right to declaratory relief;
(b)whether the possibility of a mere declaration gave rise to the necessary potential cause of action for the purposes of pre-action discovery;
(c)questions of standing; and
(d)whether there were any discretionary factors that militated against an order for pre-action discovery.

Hills Health submits that numerous authorities were referred to by the parties in relation to these issues, and in relation to the matters raised in (a) above, no authority provided a clear answer.
Hills Health also refers to and relies on the contemporaneous correspondence and actions of the parties at the time of the adjournment application and the hearing. In particular:
(a)in Historical Holdings' request for an adjournment, correspondence from Historical Holdings' solicitors made reference to the complexity of the issues:
4. Having received your client's submissions, it is evident that significant issues as to the proper interpretation and effect of the Deed of Company Arrangement and questions of standing to seek a declaration arise between our clients. Your client has cited numerous authorities in support of its positions in that regard.
5. Given the complexity of the issues that have been raised, and the limited time before the Hearing, we think that both the Court and the parties would be best assisted by an adjustment to the existing timetable such that: …
6. We cannot see how any of the parties would be prejudiced by the above proposal, which would allow the parties to properly ventilate the issues.
(b)during the hearing on 22 November 2024, counsel for Historical Holdings submitted that Hills Health had a high hurdle to persuade the court. Senior counsel for Hills Health submits that the effect of the submission was that the task Hills Health faced was complex.
Hills Health also submits that the complexity of the issues was compounded by Historical Holdings' conduct, including not clearly articulating the legal basis for the application in any real detail until the filing of their reply submissions. Hills Health submits that had this occurred earlier, it 'would have permitted a more focussed and efficient disposition' of the application and 'would likely' have resulted in Hills Health incurring a smaller quantum of costs.
Hills Health submits that the issues were important to the defendant as they concerned significant claims from creditors that were compromised by the DOCA, and to the extent any of the provisions of the DOCA were held to be ineffective, this would have significant financial consequences for Hills Health. Further, the issues concerning the effectiveness of the DOCA are important for insolvency practitioners and corporations generally. Hills Health also submits that if it had been successful, then it would be highly likely that no further action would be taken against Hills Health or the former directors at all.
Hills Health submits that whilst the court needed only to be satisfied that Historical Holdings may have a cause of action, the matters raised by Hills Health were nonetheless important, as if the court had been satisfied of any of them, it may have had the effect of providing final rulings. Hills Health relies in this respect on my conclusions at [67], [79] and [88] of the Primary Reasons as examples:
67Hills Health's submission is one possible interpretation of the interaction between the DOCA and the proposed application for declaratory relief. However, I do not consider it is the only possible interpretation.
79… in my opinion Hills Health's case that the DOCA has extinguished Historical Holdings' application for declaratory relief and that Historical Holdings does not have standing to seek declaratory relief is not so clear so as to render Historical Holdings' proposed cause of action inarguable.
88… Accordingly, I do not consider that the question of utility is a matter which weighs against the exercise of my discretion. The position may be different in a case where the lack of utility is more certain.
Historical Holdings submits that the matter was not complex, and involved only two issues. The first issue (which was the key issue) was whether Historical Holdings was able to demonstrate that it may have a cause of action against Hills Health. To the extent there was any complexity in this issue, it was due to Hills Health raising matters which were not appropriate for determination on an application for pre-action discovery.
Further, whilst Historical Holdings accepts that it requested an adjournment, this was not because of the inherent complexity, but rather because a number of new cases and matters had arisen, and it wanted to ensure that it was prepared and ready to argue the application.
Historical Holdings also submits that the application did not raise any issues of importance as it did not raise any issues above those commonly arising in pre‑action discovery applications, and the court was not required to form a final view on the substantive issues concerning the DOCA. Counsel referred to a number of paragraphs in the Primary Reasons to support its submissions that the issues raised were not complex in the sense understood by the authorities.[8] Counsel submits that nothing in the conduct of Historical Holdings at the hearing created the complexity.

Disposition

Complex

[8] See for example Primary Reasons [58] - [59], [62], [71] - [76], [79].

The key issue in the application was whether Historical Holdings may have a cause of action. This question is an essential element of every application for pre‑action discovery. In some contexts, answering this question will not be complex, whilst in others it may.
In the present case, this question involved consideration of the terms of the DOCA and the relevant provisions of the Corporations Act, and whether any of those provisions excluded any claim that Historical Holdings may have against Hills Health. It was also necessary, in this context, to consider the question of whether a bare declaration was excluded, and an associated question of standing.
The mere fact that it was Hills Health that raised these issues does not of itself mean that the matter is not complex. As I indicated during my oral reasons on 20 December 2024, there was nothing inappropriate in Hills Health raising these issues in the context of a pre‑action discovery application where Historical Holdings was required to demonstrate that it may have a cause of action. Hills Health was targeted in relation to the issues raised.
Further, I do not consider that the conduct of Historical Holdings during conferral was the source of any complexity. Rather, to the extent there was any complexity, I consider that complexity would arise from the underlying facts and legal issues of the case, and it is in that context that I have considered whether the requirement for complexity is met in this case.
The question before me was whether to grant Historical Holding's application for pre‑action discovery. The question of whether of Historical Holdings may have a cause of action was the key issue in dispute in the application, with Hills Health (appropriately) not challenging any of the other requirements for an application for pre‑action discovery, save for the application of discretionary factors.
I have outlined earlier in these reasons, the various issues that were raised by the application. Whilst a number of issues were raised, ultimately the application only involved a consideration of a limited number of provisions of the DOCA and the Corporations Act. I am not satisfied that the number of terms or clauses of the DOCA, or the associated provisions of the Corporations Act, were extensive or were sufficiently complex in nature.
At its heart, this involved questions of construction of a limited number of terms of the DOCA and a limited number of provisions of the Corporations Act. The parties did refer the court to several authorities on this issue and it was necessary to review these various authorities. However, ultimately, each of those authorities turned on their facts and were therefore of limited assistance to the resolution of the key question.
Further, as the key question was whether Historical Holdings may have a cause of action against Hills Health. It was therefore not necessary to form any final conclusions on any of the underlying issues raised in the dispute.
It is also relevant that the oral hearing went for only two hours and four minutes, and the written submissions were not voluminous. Whilst the affidavit filed by Historical Holdings was lengthy, the number of relevant pages were limited and much of the information was associated with the DOCA and circumstances leading up to it.
In those circumstances, even allowing for the work that would be required to prepare the written submissions, including legal research, I am not satisfied that any inadequacy of the maximum amount allowed under the 2024 Determination arises because of the complexity of the issues involved.

Importance

In terms of importance, Historical Holdings (correctly) submits that in a pre-action discovery application a court is not being asked to make a final determination of whether a party does or does not have a cause of action. Rather, the question is whether the applicant may have a cause of action and therefore the matter is not important in the relevant sense.
Hills Health submits that whilst the question before the court was only whether Historical Holdings may have a cause of action, if the court had accepted any of its submissions on this issue, then the effect would have been to conclude that Historical Holdings did not have a cause of action against Hills Health, or standing to seek a declaration. This would have significant consequences for the parties, including that it would, in Hills Health's submission, be highly likely that no further action would be taken against Hills Health or the directors at all.
However, this is a possible outcome in every application for pre-action discovery where the issue in dispute is whether the applicant may have a cause of action. Whilst I accept the general submission that the application was important to Hills Health and the former directors, the court was not being asked to, and did not, make any final determination of the matters advanced by Hills Health. In the context of an application for pre-action discovery, the court only needed to consider whether Historical Holdings had established that it may have a cause of action. When the application is understood in this context, I do not consider the application can be described as important in the relevant sense.
In any event, even if I were to accept that the application was important in the relevant sense, I am not satisfied that any such importance was the cause of any inadequacy in the maximum allowed under the 2024 Determination, given the nature of the issues raised, the length of the submissions and the length of the hearing.

Other matters

Historical Holdings also relied on the original application made on 20 December 2024, that it pay Hills Health's costs of the application on an indemnity basis. I refused that application for the oral reasons I gave on 20 December 2024. Historical Holdings submits that this application effectively amounts to Hills Health seeking an order to a similar effect.
I do not accept this submission. There is a difference between a special costs order lifting the scale and an order for indemnity costs. If granted, this application will not result in the taxing officer taxing the costs on an indemnity basis. They will still be taxed on a party‑party basis, but the upper limit for one item of the 2024 Determination will be removed.

Conclusion

For the reasons I have given, I am not satisfied that the limit contained in item 11(a) of the 2024 Determination should be removed pursuant to s 141(3) of the Uniform Act, and therefore Hills Health application is dismissed.
My preliminary view is that in these circumstances, Hills Health should pay Historical Holdings' costs of this application on a party‑party basis to be taxed if not agreed. However, I will hear further from the parties in relation to the appropriate orders to give effect to my decision, including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HY
Associate to the Honourable Justice Seaward
5 SEPTEMBER 2025