The Returned & Services League of Australia WA Branch Incorporated v Vietnam Veterans and Veterans Motorcycle Club WA Chapter (Inc) [No 2] - [2025] WASC 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   THE RETURNED & SERVICES LEAGUE OF AUSTRALIA WA BRANCH INCORPORATED -v- VIETNAM VETERANS AND VETERANS MOTORCYCLE CLUB WA CHAPTER (INC) [No 2] [2025] WASC 148
CORAM:   MUSIKANTH J
HEARD:   16 APRIL 2025
DELIVERED          :   1 MAY 2025
FILE NO/S:   CIV 1458 of 2024
BETWEEN:   THE RETURNED & SERVICES LEAGUE OF AUSTRALIA WA BRANCH INCORPORATED
Plaintiff
AND
VIETNAM VETERANS AND VETERANS MOTORCYCLE CLUB WA CHAPTER (INC)
Defendant

FILE NO/S: CIV 1063 of 2025
BETWEEN: THE RETURNED & SERVICES LEAGUE OF AUSTRALIA WA BRANCH INCORPORATED
Plaintiff
AND
VIETNAM VETERANS AND VETERANS MOTORCYCLE CLUB WA CHAPTER (INC)
Defendant

Catchwords:

Indemnity costs - Calderbank offer - Whether failure to accept offer unreasonable - Turns on own facts

Costs - Application for urgent interlocutory injunction by party ultimately successful at trial - Unreasonable conduct - Appropriate costs order - Turns on own facts

Legislation:

Property Law Act 1969 (WA)
Supreme Court Act 1935 (WA)
Supreme Court Rules 1971 (WA)

Result:

Costs orders made

Category: B

Representation:

CIV 1458 of 2024

Counsel:

Plaintiff	:	Mr T P L Drok
Defendant	:	Mr S D Hicks

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Lawfield Legal Practice

CIV 1063 of 2025

Counsel:

Plaintiff	:	Mr T J Porter & Mr T P L Drok
Defendant	:	Mr S D Hicks

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Lawfield Legal Practice

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

Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Frigger v Lean [2012] WASCA 66
Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd [No 2] [2023] WASC 297
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
McIntosh v Peterson [No 3] [2024] WASC 446
Sakari Resources Ltd v Purvis [2016] WASCA 24 (S)
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
The Returned & Services League of Australia WA Branch Incorporated v Vietnam Veterans and Veterans Motorcycle Club WA Chapter (Inc) [2025] WASC 64

MUSIKANTH J:

On 6 March 2025, I delivered judgment in these proceedings brought by the Returned and Services League of Australia WA Branch Incorporated (RSLWA) against the defendant (VMC) (6 March judgment).[1]
[1] The Returned & Services League of Australia WA Branch Incorporated v Vietnam Veterans and Veterans Motorcycle Club WA Chapter (Inc) [2025] WASC 64 (6 March judgment).
On 18 March 2025, after hearing further from the parties, I made the following orders:
Declarations
1. On 6 February 2024, the Plaintiff lawfully terminated the Defendant's tenancy of part of the property at 68 Sylvia Street, Nollamara, WA, 6061 (Property).
2. The Defendant has no existing right to occupy or use any part of the Property.
Injunction
3. Subject to orders 4 and 5, the Defendant, including its officers, employees, members and agents, must vacate the Property by 7 April 2025.
4. In vacating the Property the Defendant is to: (a) give vacant possession of the building constructed by the Defendant on the Property in 1996 or 1997 (Clubhouse); and (b) remove all outward manifestations of the Defendant's former occupation of the Clubhouse including but not limited to any signage, any flag(s), and all razor wire.
5. The Defendant may exercise, by notice in writing to the Plaintiff issued no later than 8 May 2025, a right to disassemble the Clubhouse, from the base of the concrete slab upwards.
Counterclaim
6. The Defendant's counterclaim is hereby dismissed.
…
At the request of the parties, orders were also made to facilitate conferral on the question of costs and, failing agreement, its determination.
The parties were unable to agree on costs and subsequently advanced submissions on that question at a special appointment on 16 April 2025.
Having reserved my decision on the question of costs, I now make the following final orders in relation to costs:
1.Subject to orders 2 and 3 below VMC pay RSLWA's costs of the action commenced by writ of summons filed 24 April 2024 in matter CIV 1458 of 2024 and of the action commenced by writ of summons filed 21 January 2025 in matter CIV 1063 of 2025, including any reserved costs, incurred:
(a)up to and including 29 November 2024 on a party/party basis; and
(b)from and including 30 November 2024 on a full indemnity basis except in so far as such costs have been unreasonably incurred.
2.VMC pay RSLWA's costs of VMC's counterclaim filed 6 December 2024 in matter CIV 1458 of 2024, and of the special appointment held on 16 April 2025, on a party/party basis.
3.There be no order as to the costs of RSLWA's application by chamber summons dated 24 April 2024 for urgent interlocutory relief, the hearing on 1 May 2024 (which costs were reserved), RSLWA's responses to the Court's correspondence of 7, 17 and 18 February 2025, the hearing on 18 February 2025, or RSLWA's statement filed on 24 February 2025.
4.The costs payable pursuant to orders 1 and 2 above be taxed if not agreed.
My reasons for making the above orders are as follows.

Costs issues for determination

It was common ground that RSLWA, as the successful party, is entitled to an order that VMC pay its costs of the proceedings (including the costs of VMC's counterclaim filed 6 December 2024) on a party/party basis with such costs to be taxed if not agreed.
However, the parties were unable to agree on:
(a)whether VMC should be ordered to pay some of RSLWA's costs on a full indemnity basis in consequence of VMC's rejection of a Calderbank offer made by RSLWA on 29 November 2024 (Calderbank offer); and
(b)what costs orders, if any, should be made in connection with RSLWA's application by chamber summons dated 24 April 2024 for urgent interlocutory relief (interlocutory application).
With respect to the first question, RSLWA contended VMC should pay its costs on a full indemnity basis from 30 November 2024 in consequence of VMC's rejection of the Calderbank offer. VMC, on the other hand, submitted all costs should be payable on a party/party basis alone.
Regarding the second question, RSLWA submitted VMC should pay the costs of the interlocutory application, as part of the action in matter CIV 1458 of 2024. However, VMC sought an order that RSLWA pay its costs of that application.
As was recently observed in McIntosh v Peterson [No 3]:[2]
(1)The Court has a wide discretion in respect of the orders for costs in proceedings subject to any statutory provision to the contrary.[3]
(2)The discretion to award costs is to be exercised judicially but it is otherwise unconfined.[4]
(3)Ultimately, the discretion must be exercised to achieve what is fair and just between the parties according to the circumstances of the particular case.[5]
(4)Without limiting the Court's wide discretion as to costs, the starting point in relation to the awarding of costs is that the Court will generally order that the successful party to the action or matter may recover its costs. It is incumbent on an unsuccessful party to satisfy the Court that there are good reasons why it should not pay the successful party's costs.[6]
(5)What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or the failure of that party on one or more specific issues.[7]
[2] McIntosh v Peterson [No 3] [2024] WASC 446 [14] - [16] (Quinlan CJ).
[3] Supreme Court Act 1935 (WA) s 37; Supreme Court Rules 1971 (WA) O 66 r 1.
[4] Frigger v Lean [2012] WASCA 66 [53] (Allanson J; Newnes and Murphy JJA agreeing).
[5] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 558.
[6] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [49] (Murphy, Mitchell and Pritchard JJA).
[7] Strzelecki Holdings Pty Ltd v Jorgensen [50].

Indemnity costs/Calderbank Offer

It is well-established that a party may be awarded indemnity costs where the opposing party has unreasonably failed to accept a Calderbank offer that was open for a reasonable period and represented a genuine attempt to settle the dispute on terms more favourable than the result achieved at trial.
The party who makes a Calderbank offer that is rejected bears the onus of satisfying the Court that it should make an award of indemnity costs in their favour.[8]
[8] Strzelecki Holdings Pty Ltd v Jorgensen [82] citing Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [21] (Buss JA; Wheeler JA agreeing).
The mere fact that the recipient of a Calderbank offer is ultimately worse off than they would have been had the offer been accepted does not mean that its rejection was unreasonable.[9]
[9] Strzelecki Holdings Pty Ltd v Jorgensen [83] citing Ford Motor Company of Australia Ltd v Lo Presti [18] and Sakari Resources Ltd v Purvis [2016] WASCA 24 (S) [13] (Buss, Newnes and Murphy JJA).
Instead, in determining whether the rejection of the offer was unreasonable all relevant facts and circumstances must be considered.[10]
[10] Strzelecki Holdings Pty Ltd v Jorgensen [83] citing Ford Motor Company of Australia Ltd v Lo Presti [17].
In deciding whether the rejection of a Calderbank offer was unreasonable regard should ordinarily be had to, at least, the following:
(a)the stage of the proceeding at which an offer was received;
(b)the time allowed to the party to consider an offer;
(c)the extent of the compromise offered;
(d)the party's prospects of success assessed at the date of an offer;
(e)the clarity with which the terms of an offer were expressed; and
(f)whether an offer foreshadowed an application for indemnity costs in the event of the party rejecting it.[11]
[11] Ford Motor Company of Australia Ltd v Lo Presti [19] citing Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [23], [89], Sakari Resources Ltd v Purvis [12], Strzelecki Holdings Pty Ltd v Jorgensen [83].
RSLWA made its Calderbank offer less than two months before the scheduled trial commencement date.
The Calderbank offer was expressed to be open until 5 pm on 3 January 2025. In other words, for a period of 35 days expiring 17 days before the scheduled trial commencement date.
By the Calderbank offer, RSLWA proposed settlement of the proceedings on the following terms:
(a)VMC was to vacate the Property within 60 days of VMC's written acceptance of the offer;
(b)RSLWA would pay VMC the sum of $50,000 inclusive of GST within 7 days after VMC vacates the Property;
(c)within 7 days of the payment of that sum, the parties would sign and file proposed consent orders seeking to dismiss the proceedings and vacate all outstanding orders as to costs;
(d)each party would bear its own legal costs in relation to the proceedings; and
(e)the parties would, at their own cost, agree and execute a settlement deed, to be prepared by RSLWA's solicitors, giving effect to the terms of the offer and containing the usual terms as to mutual release, indemnity, confidentiality, non-disparagement, and any other agreed terms.
The above terms were clearly stated in the letter conveying the Calderbank offer after the author had explained, in some detail, RSLWA's views on the prospects of aspects of VMC's defence by reference to authority and to two earlier letters in which RSLWA had canvassed relevant legal principles.
The letter also foreshadowed an application for indemnity costs if VMC rejected the Calderbank offer.
By the time the Calderbank offer was made, the pleadings were all but finalised, discovery was complete, and all of RSLWA's witness outlines had been filed.
On 12 December 2024, VMC rejected the Calderbank offer in writing.
By that time, pleadings were complete, and RSLWA's written outline of opening submissions had been filed as had slightly amended versions of two of RSLWA's witness outlines.
According to RSLWA, VMC's rejection of the Calderbank offer was unreasonable in the following circumstances.
First, the compromise offered was 'significant' when compared with the final outcome.
In this regard, by the Calderbank offer:
(1)RSLWA offered to pay VMC $50,000 (despite RSLWA being the plaintiff). However, RSLWA was ultimately not ordered to pay any amount to VMC.
(2)VMC was given 60 days, from any acceptance of the offer, to vacate the Property. However, the Court ultimately only gave VMC 20 days, from the date of its orders, to do so.
(3)Each party would bear its own costs. However, given RSLWA's success at trial that will not be the costs outcome even if VMC were to be ordered to pay only those costs which it has conceded.
Secondly, it ought to have been 'abundantly clear' to VMC (by, at least, the time the Calderbank offer was made 'if not much earlier') that VMC enjoyed no prospects of success at trial.
In this connection, RSLWA says the following:
(1)Regarding the nature of VMC's right to occupy the Clubhouse, it was plain from the terms of Exh H that the document did not itself comprise an agreement and that (even if it were to have been so construed) VMC's defence that it had a 'lease' was foredoomed given the duration of a lease must be certain from the outset.
(2)Concerning VMC's 'estoppel' defence, the representations pleaded by VMC were neither supported by the witness outlines which VMC had filed at the time of the Calderbank offer nor by any of its witness outlines filed subsequently. It should therefore have been clear to VMC that the factual basis for its estoppel defence could never have been established at trial.
(3)With respect to the question of 'termination', it should have been clear to VMC, when the Calderbank offer was made, that any right which VMC had to occupy the Clubhouse had been validly terminated either on 6 February 2024 or, at the very least, in consequence of RSLWA's notice of 26 August 2024 (26 August letter).
(4)The 'unclean hands' defence never stood any prospect of success. The defence failed for multiple reasons,[12] and its likely failure should have been apparent to VMC when the Calderbank offer was made.
[12] 6 March judgment [221] - [228].
VMC, on the other hand, contends that its rejection of the Calderbank offer was not unreasonable for the following reasons.
First, the Calderbank offer neither addressed VMC's 'unclean hands' defence nor offered any argument as to why that defence would fail.
In this connection, VMC observes that, although the Court ultimately rejected its 'unclean hands' defence, it only did so after:
(a)noting that the applicable principles remained discretionary being impacted by the circumstances of each individual case;
(b)finding that VMC was not given any time at all to enter the Clubhouse to remove its own property as was required by law;
(c)considering evidence as to Mr Mongan's belief; and
(d)exercising its discretion as to 'various matters'.
Secondly, it cannot be said that VMC is 'worse off' than the Calderbank offer because the right to remove the Clubhouse, as provided for in the Court's orders of 18 March 2025, is 'difficult to value' and 'cannot be readily compared' to the terms of the Calderbank offer.
Thirdly, the matters arising from the 26 August letter[13] were not 'properly' in issue between the parties until 21 January 2025 when RSLWA (with leave from the Court) commenced a further action against VMC in matter CIV 1063 of 2025.
[13] See 6 March judgment [160] - [164].
Fourthly, the 'other issues' raised by VMC in its defence involved 'difficult questions of fact regarding events nearly 29 years before and difficult questions of the interpretation of [Exh H], which [were] reasonable to determine at trial'.
Having carefully considered the parties' respective submissions, I have come to the view that it was unreasonable for VMC to have refused to accept the Calderbank offer in all the circumstances.
I have reached this view substantially for the reasons advanced by RSLWA, as summarised in paragraphs 26 to 29 above.
With respect to the four points raised by VMC[14] I make the following observations.
[14] See paragraphs 31 - 35 above.
First, whilst VMC did refer to its 'unclean hands' defence in an email sent to RSLWA's solicitors several weeks before the Calderbank offer, it neither mentioned the defence in its email rejecting the offer nor identified it as a reason for such rejection.
Further, and whilst it is correct that the 'unclean hands' defence was only rejected after I had considered evidence as to Mr Mongan's belief and concluded there was an insufficient evidentiary basis to infer an absence of good faith, there were also other reasons for why the defence failed.
Significantly, one of those other reasons was that the 'protection' which RSLWA claimed, being injunctive relief, did not involve protection for RSLWA's 'own wrong'.
In this regard, as I observed in the 6 March judgment, RSLWA brought the proceedings as a direct consequence of VMC having retaken possession of the Clubhouse some six weeks after RSLWA had removed various personal items complained of from the Clubhouse.
Accordingly, VMC did not show any 'immediate and necessary connection' between RSLWA's removal of those items after RSLWA had lawfully terminated VMC's tenancy at will and taken possession of the Property (on the one hand), and the injunctive relief sought by RSLWA (on the other).[15]
[15] 6 March judgment [223] - [225].
The need for such a connection is well-established, having been confirmed by the Court of Appeal several years ago when restating the principles applicable to the 'unclean hands' doctrine.[16]
[16] Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188 [107].
As the party advancing such a defence, it would have been incumbent upon VMC to have familiarised itself with those principles particularly given the trial dates were fast approaching by the time the Calderbank offer was made.
Had VMC done so, the difficulties which it would likely encounter in establishing the required 'immediate and necessary connection' would have been, in my view, manifest.
Secondly, although the Calderbank offer did not address VMC's right to disassemble the Clubhouse, VMC neither sought such relief in its counterclaim, filed 6 days after the Calderbank offer was made, nor referenced it in subsequent correspondence.
Nor did VMC advance any argument at trial to the effect that the Court should condition any injunction accordingly in the event that its defences were to fail.
It necessarily follows, as RSLWA correctly submits, that the omission of any mention by RSLWA of VMC's right to disassemble the Clubhouse in its Calderbank offer does not change the fact that the Calderbank offer was a significant and genuine compromise and should have been accepted.
Thirdly, I do not consider VMC's contention, even if correct, the fact that matters arising from the 26 August letter may not 'properly' have been in issue until 21 January 2025 to afford an adequate answer to the proposition that VMC's rejection of the Calderbank offer was not unreasonable in all the circumstances.
I understood VMC's reference to '21 January 2025' to be a reference to the further action, referred to in paragraph 34 above, which I ordered be heard together with and at the same time as the action commenced by writ in matter CIV 1458 of 2024 on 24 April 2024. The only substantive point effectively introduced by the second writ, which had not been mentioned in the first, was an issue which the parties had already agreed would need to be determined at trial; namely, whether any right of occupation which VMC may have enjoyed was (in the alternative) terminated with effect from 1 October 2024 consequent upon the 26 August letter.

As noted in the 6 March judgment,[17] RSLWA had in the alternative contended, in the 26 August letter, that any proprietary interest of VMC in part of the Property was terminable on 'one month's notice'. That contention, which was evidently based on s 72 of the Property Law Act 1969 (WA), had formed part of RSWLA's pleaded case since as early as June 2024.[18] That position was resisted by VMC as part of its estoppel defence[19] (a defence which, as RSLWA correctly pointed out in its letter conveying the Calderbank offer, was 'doomed' to fail').
[17] 6 March judgment [162].
[18] Statement of claim filed 26 June 2024 [21].
[19] Defence filed 18 June 2024 [19].
As will be recalled from the 6 March judgment, I in any event found that RSLWA lawfully terminated VMC's tenancy on 6 February 2024.[20]
[20] 6 March judgment [159].
I arrived at that finding on the basis that VMC's right of occupation was only that of a tenant at will; being a tenancy which RSLWA was entitled to terminate without notice.[21]
[21] 6 March judgment [159].
Fourthly, whilst it might be accepted that it would have been necessary at any trial to make findings about events which had occurred nearly 29 years before, it is not the case that this matter involved 'difficult questions' of either interpretation or fact.
At the end of the day, given the material available to VMC when the Calderbank offer was made (and certainly by the time it was rejected),[22] I consider that it ought to have been clear to VMC that:
(a)Exh H could not have amounted to a lease on any reasonable construction;
(b)VMC enjoyed no realistic prospect of proving the existence of a valid lease in circumstances where no evidence of a certain duration of term existed;
(c)VMC could never have established the factual basis for its estoppel defence at trial;
(d)whatever limited right of occupation VMC might have previously enjoyed had already been lawfully terminated; and
(e)it was highly unlikely that VMC would, at trial, be able to demonstrate the required 'immediate and necessary connection' to enliven the Court's discretion to uphold its 'unclean hands' defence.
[22] See paragraphs 22 and 24 above.

Interlocutory application, Exh H

Relevant aspects of the procedural history associated with the interlocutory application may be found at paragraphs [232] - [264] of the 6 March judgment.
Critically for present purposes, I observed that the combined effect of:
(a)unqualified statements in two affidavits filed by RSLWA in support of the interlocutory application; and
(b)the failure by either deponent to say anything at all about the existence or contents of a document which would later become central to VMC's defence at trial,
rendered the affidavits filed by RSLWA in support of the interlocutory application 'readily capable of giving rise to impressions that were apt to mislead'.[23]
[23] 6 March judgment [261].
I made that observation in a context where:
(a)VMC was unrepresented when the application and affidavits were filed;
(b)the interlocutory application was ultimately not argued, and the affidavits were never read by RSLWA; and
(c)the application was adjourned sine die in favour of an expedited trial on the main action after VMC had provided further information to the Court about the alleged nature of the arrangement relating to its use and occupation of the Clubhouse; and about the long-standing duration of that arrangement, prior to 6 February 2024.
It should also be noted that shortly before the interlocutory application was called on for hearing, on 1 May 2024, RSLWA filed a supplementary set of written submissions.
In those submissions, RSLWA among other things:
(a)observed it had received two documents by email from Mr Nicholls, the treasurer of VMC, the first being a memorandum of appearance and the second an affidavit sworn 29 April 2024 by a Mr Paul Jarratt containing certain statements about an 'alleged lease';
(b)contended that the memorandum of appearance was not a valid one, that VMC could only appear and defend the proceedings by a solicitor, and that the Court had no power to waive this requirement; and
(c)contended that 'VMC cannot defend the proceeding on the basis of [Mr Jarrat's] affidavit, or at all, in circumstances where it is unrepresented'.[24]
[24] Plaintiff's supplementary submissions dated 1 May 2024 [4].
Thus, as at 1 May 2024, RSLWA's position was that VMC should not be heard given it was unrepresented and not an individual.
Whilst that approach was correct as a matter of law,[25] the fact that RSLWA expressly adopted it made the need for scrupulous adherence to its duty of candour all the more important.
[25] Cf. RSC O 4 r 3(2), O 12 r 1(2); Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd [No 2] [2023] WASC 297 [2] (Lundberg J) and the authorities there cited.
As noted in the 6 March judgment, VMC had on any view enjoyed a right to occupy the Clubhouse (at least as a tenant at will with RSLWA's consent) for more than a quarter of a century when it was evicted from the Property.
In those circumstances, the existence and content of Exh H were plainly material to the Court's consideration as to whether the balance of convenience favoured the grant of the interlocutory relief which RSLWA then sought.
It necessarily follows that RSLWA should have drawn those matters to the Court's attention.
Its failure to do so was, in my view, unreasonable in all the circumstances.
It follows that I do not consider it would be appropriate for RSLWA to be permitted to recover its costs of the interlocutory application from VMC (including any costs associated with the appearance on 1 May 2024).
Having said that, I also do not consider RSLWA should instead be required to pay VMC's costs associated with that application.
I say this for the following reasons.
First, contrary to VMC's submission, I do not accept there was 'no proper basis' for an interlocutory injunction. To the contrary, the interlocutory application, in my view, at the very least raised a serious question to be tried as to whether VMC then enjoyed any existing right to occupy or use any part of the Property.
Indeed, RSLWA was ultimately successful not only in obtaining declaratory relief that VMC enjoyed no such right, but also final injunctive relief.
Secondly, RSLWA's unreasonable conduct was confined to its filing of two affidavits on 24 April 2024 and its failure to draw the existence or content of Exh H to the attention of the Court either at that time or at the hearing on 1 May 2024.
VMC was unrepresented at both points, and no recoverable legal costs could thus be said to have been incurred by VMC at either time.
Thirdly, the costs which VMC evidently seeks relate to submissions and affidavits which it filed in opposition to the interlocutory application. Those materials were filed on 7 June 2024 pursuant to orders of the Court after VMC's current solicitors had entered an appearance. The focus of the materials was on VMC's asserted rights as a 'lessee', with little (if any) attention paid to the question of balance of convenience. As is evident from the 6 March judgment, VMC was wholly unsuccessful in persuading the court that it enjoyed any leasehold interest at all.
Finally, as was also noted in the 6 March judgment, the interlocutory application was ultimately adjourned sine die with none of the affidavits filed in support (or against) having been read. VMC, appropriately, consented to that course at a directions hearing on 12 June 2024.
RSLWA properly accepts that if I were minded to make no order as to the costs of the interlocutory application, it would not be inappropriate for a similar order also to be made with respect to the costs associated with its responses to the Court's enquiries concerning Exh H following reservation of judgment.
It would seem to me appropriate in all the circumstances for such an order to be made too.

Conclusion

For the forgoing reasons, I make the final orders as to costs set out in paragraph 5 above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
1 MAY 2025