Whymark Nominees Pty Ltd v Mitchell [No 2] - [2025] WASC 463

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WHYMARK NOMINEES PTY LTD -v- MITCHELL [No 2] [2025] WASC 463
CORAM:   HILL J
HEARD:   23 SEPTEMBER 2025; WRITTEN SUBMISSIONS FILED 26 SEPTEMBER & 3 OCTOBER 2025
DELIVERED          :   7 NOVEMBER 2025
FILE NO/S:   CIV 2074 of 2019
BETWEEN:   WHYMARK NOMINEES PTY LTD
Plaintiff

TANKCHECK (WA) PTY LTD
Second Plaintiff

AND

ANDREW DEAN MITCHELL
Defendant

Catchwords:

Practice and procedure - Plaintiffs' application for continuation of freezing order - Defendant's application to vary undertakings - Whether separate undertaking ought be accepted in place of freezing order - Whether undertaking and/or freezing order should be varied to enable payment of defendant's legal costs - Whether defendant has made sufficient disclosure of his assets - Whether defendant has discharged onus in relation to quantum of legal costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 52A r 2

Result:

Undertakings varied to allow payment of legal costs of $72,667.75

Category: B

Representation:

Counsel:

Plaintiff	:	R W Douglas
Second Plaintiff	:	R W Douglas
Defendant	:	J MacLaurin SC

Solicitors:

Plaintiff	:	Couldwell Legal
Second Plaintiff	:	Couldwell Legal
Defendant	:	Cove Legal

Cases referred to in decision:

HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission [2021] VSCA 200; (2021) 64 VR 270
National Australia Bank Ltd v Clowes [2013] NSWCA 179
PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All ER 158
Pico Holdings Inc v Wave Vistas Pty Ltd [2005] HCA 13; (2005) 79 ALJR 825
RFD Ltd v Harris [No 2] [2011] WASC 104
Rimex Wheel Pty Ltd v Wulff [2018] WASC 180
Vasilaras & Co Pty Ltd v Laprese [2019] VSC 56; (2019) 58 VR 155
Whymark Nominees Pty Ltd v Australian Civils Pty Ltd [2020] WASC 62

HILL J:

On 11 July 2025, the plaintiffs filed a chamber summons seeking an interlocutory injunction and freezing orders in relation to the net proceeds of the sale of a property then owned by the defendant and his wife in Dunsborough (Dunsborough Property). Specifically, the plaintiffs sought orders for the defendant's proportion of the proceeds of the sale to be paid into his solicitors' trust account pending final resolution of these proceedings. At that time, settlement was scheduled for Monday 14 July 2025.
The plaintiffs' application was listed before me on an urgent basis on 11 July 2025. Initially, the application was opposed by the defendant. However, at the hearing, counsel who appeared for the defendant proffered an undertaking to the court to pay the defendant's proportion of the proceeds of sale (Proceeds) into his solicitors' trust account. Given this undertaking, orders were made to program the plaintiffs' application to a hearing on 6 August 2025 with liberty to apply on four hours' notice.
A formal undertaking was filed by the defendant's solicitors on 11 July 2025 shortly after the hearing, followed by the filing of an undertaking personally signed by the defendant on 17 July 2025 (Undertakings).
On 21 July 2025, the defendant filed a notice of change of representation in these proceedings giving notice of his intention to act in person. On being served with this document, the plaintiffs' solicitors initially sought to relist the application, pursuant to the liberty to apply. Ultimately, following an exchange of correspondence between the plaintiffs' solicitors and the former solicitors for the defendant confirming the Undertakings remained in place, the plaintiffs did not press for the application to be relisted at that time.
On 8 August 2025, pursuant to the liberty to apply, the plaintiffs again sought to relist the chamber summons on an urgent basis. This was because the plaintiffs had become aware the defendant had lodged an application to transfer his interest in the family home in East Fremantle (East Fremantle Property), which is jointly owned by him and his wife. At that stage, it was not known to whom the defendant proposed to transfer his interest. The plaintiffs subsequently became aware that the defendant proposed to transfer his interest in the East Fremantle Property to his wife for no consideration.
The chamber summons was relisted that afternoon and the defendant appeared by telephone. At the hearing, a bundle of documents was handed up to the court as evidence of the matters relied upon and an undertaking was given by counsel for the plaintiffs to file these documents, to regularise matters. At the conclusion of this hearing, orders were made under O 52A r 2 of the Rules of the Supreme Court 1971 (WA) to restrain the defendant from granting or transferring any interest in the East Fremantle Property until further order (Orders). The plaintiffs' amended chamber summons was otherwise adjourned for hearing until 20 August 2025. The proposed transfer of the defendant's interest in the East Fremantle Property has not occurred as a consequence of the Orders.
On 11 August 2025, the defendant appointed new solicitors to act for him in these proceedings. On 20 August 2025, orders were made programming the plaintiffs' application for a continuation of the Orders to a hearing on 23 September 2025. These orders required the defendant to file any materials in opposition to the application by 5 September 2025 and for the plaintiffs to file any materials in reply by 19 September 2025.
The defendant did not comply with the programming orders. He filed his first affidavit on 12 September 2025, with submissions filed on 14 September 2025. His second affidavit was filed on 23 September 2025 in response to certain matters raised by the plaintiffs in their reply submissions. On the same date, the defendant also filed two proposed undertakings. The first sought to vary the Undertakings to enable him to meet his legal costs of these proceedings as well as the defence costs of separate criminal proceedings. The second undertook not to deal with his legal or equitable interest in the East Fremantle Property while these proceedings are ongoing.
At the hearing on 23 September 2025, it became apparent that there were two main issues in dispute between the parties. First, whether the defendant had adduced accurate and fulsome evidence of his asset position and the resources available to him to fund his legal costs without recourse to the Proceeds or his interest in the East Fremantle Property. Second, in the event the court was satisfied the defendant's only assets were the Proceeds and his interest in the East Fremantle Property, what orders should be made to enable the defendant to meet his legal costs.
The plaintiffs did not accept that the Proceeds and the East Fremantle Property were the defendant's only significant assets. In support of this submission, counsel for the plaintiffs handed up a transfer document obtained from Landgate in relation to Lizabella Pty Ltd (Lizabella), a company of which the defendant and his wife are directors and shareholders.[1] Counsel for the plaintiffs submitted this document evidenced the receipt of significant funds by a related party of the defendant in May 2024, which had not been the subject of evidence or disclosure in the defendant's affidavits filed in opposition to the application.
[1] Affidavit of Jeffery Mark Hall filed 23 September 2025, 'JMH-129'.
Approximately one hour's notice was given to the defendant's solicitors of the plaintiffs' intention to seek to rely on this document. In circumstances where the defendant had not had any opportunity to respond, I made orders enabling the defendant to file further evidence and submissions to address this matter and for the plaintiffs to file further evidence and submissions in response.
In my view, the manner in which the plaintiffs' solicitors and counsel have approached this application is unorthodox. While the court understands it is not always possible, in matters of urgency, for evidence to be adduced by way of affidavit filed prior to a hearing, I am not satisfied that urgency was a sufficient explanation for the failure to adduce this evidence on affidavit. The document handed up to the court at the hearing was obtained at 11.08 am, more than three hours' prior to the hearing at 2.15 pm. There was, in my view, sufficient time for the document to be annexed to an affidavit, which could then have been filed and served on the defendant. The plaintiffs' failure to do so, as well as their failure to give sufficient notice to the defendant of their intention to refer to this document, led to further material being filed by both parties and additional time being spent by the court in addressing this application.
For the reasons which follow, it is my view that the Undertakings should be varied to enable the payment from the Proceeds of the reasonable legal costs of the defendant in both these proceedings and the criminal proceedings. There is, however, insufficient evidence as to the basis on which the defendant has estimated that his costs of defending both proceedings will be more than $300,000 or the timeframe over which these costs will be incurred. At this stage, I consider that the Undertakings should be varied to enable the payment of legal costs of $72,667.75 from the funds held on trust by the defendant's former solicitors. If any further variation is sought, it will be necessary for the defendant to adduce evidence as to the basis for any costs estimates and the timeframe over which these costs will be incurred.

Summary of plaintiffs' claims

As is apparent from the date these proceedings were commenced (20 June 2019) and the above summary of the current applications, these proceedings have a long and somewhat complex history. Much of this history is not relevant to the application before me today.
The first plaintiff's claim arises in relation to a vessel known as 'Satisfaction' (Vessel) which the first plaintiff agreed to purchase from Australian Civils Pty Ltd (Civils), a company of which the defendant was the sole director. The first plaintiff seeks an order for payment of (or damages equivalent to) the costs of transferring the registration of the Vessel to the first plaintiff as well as for the indemnity costs of these proceedings. On 28 February 2020, Acting Master Whitby (as her Honour then was) ordered that the defendant (and Civils, the then first defendant in these proceedings) pay the plaintiffs' costs of the proceedings to date as well as the costs associated with the transfer of the registration of the Vessel, to be taxed if not agreed, including the costs of the costs applications.[2] The application for special costs orders as against Civils (but not the defendant) was reserved to the trial judge.[3] The first plaintiff contends the defendant is liable for these amounts on the basis of representations said to be misleading and deceptive contrary to s 18 of the Australian Consumer Law (being sch 2 to the Competition and Consumer Act 2010 (Cth)) (ACL).
[2] Whymark Nominees Pty Ltd v Australian Civils Pty Ltd [2020] WASC 62.
[3] Order 4, Orders of Acting Master Whitby dated 28 February 2020.
The second plaintiff's claim arises from the sale of a business by the first plaintiff to Viewtop Holdings Pty Ltd (Viewtop) (a now deregistered company of which the defendant was the sole director and shareholder). Prior to settlement of the sale of the business, the second plaintiff agreed to provide Viewtop with a facility of approximately $370,000 for working capital.
Loan documents, guarantees by the defendant, and a mortgage over the Dunsborough Property were requested and documents in respect of the first advance of $250,000 were prepared. The plaintiffs say the defendant's solicitors provided comments on both the loan agreement and general security agreement, but not the mortgage.
Ultimately, only the loan agreement was executed by the parties. The guarantee was dated by the defendant but not signed. No mortgage over the Dunsborough Property has ever been provided (either signed or unsigned). When the documents were provided by the defendant to Jeffery Hall, the plaintiffs plead that the defendant said words to the effect 'Here are the signed documents you asked for'. Mr Hall did not go through these documents at that time. Shortly after receipt of these documents, the second plaintiff advanced $250,000 to Viewtop.
On 6 July 2018, a second set of documents were prepared by the plaintiffs' solicitors in relation to the additional loan of $120,000. The loan and general security agreement were executed by the defendant on behalf of Viewtop. When the documents were provided by the defendant to Mr Hall, the plaintiffs plead that the defendant again said words to the effect 'Here are the signed documents you asked for'. Mr Hall did not go through these documents at that time. Again, the bundle did not include an executed guarantee or mortgage. Shortly after receipt of these documents, the second plaintiff advanced $120,000 to Viewtop.
The second plaintiff says that as a consequence of these matters, it has an equitable mortgage over the Dunsborough Property.
In the alternative to this claim, the second plaintiff says the defendant's conduct was misleading and deceptive, in contravention of s 18 of the ACL.
The plaintiffs say that, as at 31 August 2025, the quantum of their claim against the defendant is not less than $1.5 million. This comprises the following:[4]
(a)costs associated with the sale of the Vessel - $77,520;
(b)enforcement costs (on an indemnity basis) - $54,281.68;
(c)interest on these amounts - $55,009.23;
(d)the loans advanced by the second plaintiff - $370,000;
(e)contractual interest of 8% (compounded monthly) ‑ $654,790.14;
(f)legal costs of these proceedings to date - $150,000;
(g)an indemnity uplift - $99,000; and
(h)interest on these costs - $44,860.93.
[4] Affidavit of Jeffery Mark Hall filed 23 September 2025, 'JMH-135'.

Should there be any variation to the Undertakings?

There was broad agreement between the parties as to the general principles that apply to this application, namely:
(a)the purpose of a freezing order is not to secure priority for the plaintiff, to prevent a defendant from paying their debts, or to stop a defendant from spending their own money. The purpose is to prevent the defendant transferring assets and thereby frustrating a monetary judgment;[5]
(b)a court can vary an undertaking given by a party in lieu of an injunction, if that party establishes by evidence that the interests of justice require the amendment to avoid the undertaking being unjust;[6] and
(c)in determining whether the proposed variation should be made, the defendant is required to satisfy the court that the money is required for a purpose which does not conflict with the policy underlying the freezing order. It also requires a party to demonstrate that there are no other assets to which resort might be had to pay legal costs and that the proposed expenditure is reasonable.[7]

What assets are available to the defendant to meet his legal expenses?

[5] PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All ER 158, 162; Rimex Wheel Pty Ltd v Wulff [2018] WASC 180 [20]; Vasilaras & Co Pty Ltd v Laprese [2019] VSC 56; (2019) 58 VR 155 [69] - [72].

[6] HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission [2021] VSCA 200; (2021) 64 VR 270 [86].

[7]RFD Ltd v Harris [No 2] [2011] WASC 104 [30].

The defendant's evidence is that he received an amount of $331,928.82 from the proceeds of the sale of the Dunsborough Property.[8] His only other substantial asset is his 'half interest' in the East Fremantle Property.[9] There is a Property (Seizure and Sale) Order lodged against the East Fremantle Property's title, although there is no information as to the extent of this encumbrance. Apart from these assets, the defendant says that his income and assets are limited. Until 21 August 2025, he was working as a consultant on a day rate of $1,800 but since that time has not found any alternative employment 'other than sporadic short-term engagements'.[10]
[8] Affidavit of Jeffery Mark Hall filed 23 September 2025, 'JMH-131'. The balance of the trust account also includes an amount transferred from a client account of the defendant and is $332,085.07.
[9] The East Fremantle Property is owned by the defendant and his wife as joint tenants: Affidavit of Jeffery Mark Hall filed 23 September 2025, 'JMH-118'; Exhibit A (from hearing on 8 August 2025), page 6.
[10] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [25].
The defendant and his wife have two bank accounts. The majority of the balance of these accounts is the proceeds of his wife's portion of the sale of the Dunsborough Property.[11]
[11] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [23] - [27].
In his first affidavit filed on 12 September 2025, the defendant explained that he had identified the assets that have 'realistic and practical value' in relation to the payment of his legal costs. He accepted that he had general chattels, such as household furniture,[12] but did not own any 'vehicles, shares, or any other valuable property'.[13] In his second affidavit filed on 23 September 2025, the defendant clarified that while he owns some shares, they do not have value (or any market). The shares owned by him are in very small corporate entities which, with one exception, are all dormant.[14]
[12] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [22].
[13] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [30].
[14] Affidavit of Andrew Dean Mitchell filed 23 September 2025 [12].
In his third affidavit filed on 26 September 2025, the defendant addressed the Landgate transfer form that was handed up by counsel for the plaintiffs during the hearing. This transfer form shows that a property owned by Lizabella was sold on 28 August 2024 for $3.025 million. The property that was the subject of this transfer was provided to the National Australia Bank (NAB) as security for loans for the purchase of the Whymark business.[15] The defendant's evidence is that the vast majority of these funds were used to discharge liabilities to NAB and that he and his wife received only $73,240.58 in proceeds, which was paid into their bank account. His evidence is that Lizabella and its associated trust are dormant and have no significant assets.
[15] Affidavit of Andrew Dean Mitchell filed 26 September 2025 [9].
The defendant deposes that he is required to pay significant legal fees to defend both these proceedings and the criminal proceedings and that his legal costs are likely to be in the order of $20,000 - $25,000 a month for the next six to 12 months.[16] His evidence is that these costs can only be satisfied by accessing the Proceeds together with any remuneration he receives from any work undertaken by him. This is because he cannot 'refinance the [East Fremantle Property] to produce funds to pay legal fees as [his] current position of facing a criminal prosecution makes acquiring any finance at this time impossible'.[17]
[16] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [38].
[17] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [33].
The only evidence that has been adduced of the defendant's costs of these proceedings is that the costs to a full trial, including counsel fees, are likely to be in the order of $150,000.[18]
[18] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [37].
In relation to the criminal proceedings, a copy of a letter from the defendant's solicitors was adduced in evidence. This letter states that the defendant currently owes his solicitors (including for counsel fees) an amount of $52,667.75 and that it was anticipated there would be further costs of $9,735 for a one-day hearing on 25 July 2025. At present, the trial has not been listed, but it is anticipated there will be a 10-day jury trial with fees of approximately $155,000.[19]
[19] Affidavit of Andrew Dean Mitchell filed 12 September 2025 [36], 'ADM-3'.

The plaintiffs do not accept this evidence discharges the defendant's onus of establishing he has no other assets from which to meet his expenses. In relation to the sale of the property by Lizabella, the plaintiffs say that it is incorrect for the defendant to assert that Lizabella has no assets. The plaintiffs say that Lizabella has a right of indemnity against the defendant, his wife, and Viewtop, having discharged their liabilities to NAB.
While I accept that the plaintiffs' analysis of Lizabella's position is legally correct, in my view, the submission has an air of unreality. The contention that Lizabella's right of indemnity over the assets of the defendant and Mrs Mitchell (which include the Proceeds and the East Fremantle Property) is a valuable asset does not take account of the fact that any amount deducted from these assets to reflect the value of Lizabella's right of indemnity will necessarily reduce the defendant's assets available to him to pay his legal fees.
On the evidence before me, I accept that the defendant has only two significant assets, namely the Proceeds and his interest in the East Fremantle Property. I also accept that the defendant is unable to pay the costs of these proceedings without recourse to one of these assets.
The primary question is which of the Undertakings or Orders should be varied to enable these payments to be made.

Should orders be made to enable the defendant to meet his legal costs from the Proceeds or the East Fremantle Property?

Counsel for the plaintiffs accepted that where an order is made freezing the entirety of the assets of a defendant, it is usual for the court to make orders enabling the defendant to meet living expenses and legal costs. Initially, the plaintiffs denied it was necessary to make any orders of this nature as the Undertakings and Orders did not freeze all of the defendant's assets.[20]
[20] ts 69.
Once again, while I accept this is technically correct, as I set out above, the Undertakings and Orders froze the Proceeds and the East Fremantle Property, which are the majority of the defendant's assets. I accept and find that the defendant does not have the resources or income to pay the legal fees of his defence of these proceedings or the criminal proceedings, unless an order is made by the court to vary the Undertakings or Orders. The question is which should be varied.
Counsel for the plaintiffs submitted that if any order varying the Undertakings or Orders was to be made, the court should enable the necessary funds to be raised against the East Fremantle Property. This was because, in their submission, the plaintiffs had a proprietary claim in relation to the Proceeds, and no such claim arose in relation to the East Fremantle Property. It was, however, accepted that if the court was not satisfied there was a proprietary claim over the Proceeds, these funds were the 'most convenient source' from which these costs could be paid.[21]
[21] ts 70.
The contention that the plaintiffs have a proprietary claim over the Proceeds arises from the second plaintiff's claim that it had an equitable mortgage over the Dunsborough Property, which is maintained over the Proceeds. The basis for this contention is set out at [57] - [72] of the Third Amended Statement of Claim filed 27 March 2024 (statement of claim) and summarised above. These matters are, in essence, verified by an affidavit of Mr Hall filed 4 November 2021 (Hall Affidavit).
An equitable mortgage will arise where there is a specifically enforceable agreement between a mortgagor and a mortgagee to create a mortgage. It is sufficient if there is a binding promise that the defendant would provide the plaintiffs with an executed mortgage over the Property that is capable of registration.[22]
[22] Pico Holdings Inc v Wave Vistas Pty Ltd [2005] HCA 13; (2005) 79 ALJR 825, 837 [68]; National Australia Bank Ltd v Clowes [2013] NSWCA 179 [25].
In this case, the plaintiffs plead a series of alternative matters to support the contention that there is a specifically enforceable agreement for the defendant to provide a mortgage over the Property.
The first is an oral agreement between Mr Hall and the defendant as pleaded in [60] of the statement of claim. The agreement is pleaded in a conclusory form and is also said to be an agreement in principle. Little additional detail of this agreement is contained in the Hall Affidavit. Given the reference in the pleading to this agreement being an agreement in principle, I do not consider there is a sufficient likelihood of success at trial that this oral agreement is specifically enforceable that would justify the preservation of the Proceeds in their entirety pending trial.
The next basis on which it is contended there is an equitable mortgage relies on the bundle of documents provided by the defendant to Mr Hall prior to the funds being advanced by the second plaintiff. These documents included a loan agreement between the second plaintiff and Viewtop.[23] This agreement provides in par 2 of the schedule that the initial security would be a mortgage over the Dunsborough Property. However, at that time, Viewtop did not have any interest in the Dunsborough Property and was not capable of granting a mortgage over the Dunsborough Property. The guarantee that was dated (but not executed by the defendant) does not include any specific requirement for the provision of a mortgage over the Dunsborough Property.[24]
[23] Affidavit of Jeffery Mark Hall filed 4 November 2021, 'JMH-31'.
[24]Affidavit of Jeffery Mark Hall filed 4 November 2021, 'JMH-32'.
Similar observations can be made about the documents provided by the plaintiffs to the defendant and Viewtop on 6 July 2018.[25] The general security agreement that was executed on that date was between the second plaintiff and Viewtop. This agreement also provided that the initial security would be a mortgage over the Dunsborough Property, although Viewtop did not have any interest in the Dunsborough Property at that stage. There is no suggestion that the defendant ever provided a copy of a mortgage to the second plaintiff or its solicitors.
[25]Affidavit of Jeffery Mark Hall filed 4 November 2021, 'JMH-33' - 'JMH-35'.
These claims, however, are not the only claim made by second plaintiff in relation to the provision of finance. The second plaintiff also says the defendant's conduct was misleading and deceptive, contrary to the provisions of s 18 of the ACL. On the evidence before me, I consider there is a serious question to be tried as to whether the defendant's conduct in saying 'Here are the signed documents you asked for' at the time he handed over the documents, if Mr Hall's evidence is accepted at trial, was misleading and deceptive. At that time, the second plaintiff had requested both a guarantee from the defendant as well as a mortgage over the Dunsborough Property; Mr Hall had not been told these documents would not be provided. However, even if the second plaintiff succeeds in establishing this claim, it does not give rise to any claim over the Dunsborough Property; it is a claim for damages.
On the basis of the evidence currently before me, I do not consider that there is a sufficient likelihood that the second plaintiff will succeed in establishing it had an equitable mortgage over the Dunsborough Property that would justify a continuation of the Undertakings on the basis that the plaintiffs have a proprietary claim over the Proceeds.
There is no evidence before me of the value of the East Fremantle Property or whether it would be possible to obtain a loan secured by a mortgage over the defendant's interest in the East Fremantle Property. The defendant's evidence that this is not possible is in the most general terms and does not suggest that any attempt has been made to obtain finance. I place no weight on this evidence.
In the circumstances of this case, I consider that the Proceeds are the most convenient source from which the defendant's legal costs can be paid.
That said, at present, I do not consider there is sufficient evidence about what the defendant's legal costs are likely to be or how the monthly estimate of $20,000 - $25,000 has been calculated.
On the evidence before me, I accept and find that the defendant has currently incurred fees of $52,667.75 in defending the criminal proceedings. I also accept that an allowance should be made for the costs of these proceedings. Only a broad estimate of these costs is in evidence without any indication as to how this estimate has been calculated or when these costs will be incurred. Without sufficient evidence of these costs, I consider an initial amount of $20,000 should be made for the costs of defending these proceedings. I accept this allowance is unlikely to be sufficient for the payment of the defendant's reasonable costs of defending these proceedings until their conclusion. However, consistent with the principles that I have summarised above, in order to vary the Undertakings, it is necessary for the defendant to establish that the proposed expenditure is reasonable. I do not consider the evidence of the defendant has done so.
The final issue for resolution is whether the Orders should be replaced by the undertaking that has been proffered by the defendant. In the circumstances of this case, for two primary reasons, I do not accept this should occur.
First, the undertaking does not mirror the terms to the Orders, nor has the copy filed with the court been signed by the defendant. The court is not prepared to discharge the Orders without receipt of a signed undertaking from the defendant.
Second, the title of the East Fremantle Property states that it is owned by the defendant and his wife as joint tenants. Given this, it is incorrect to assert that the defendant has any separate legal or equitable interest in this property.[26] That said, it is at least arguable that the conduct of the defendant in seeking to transfer his interest in the East Fremantle Property to his wife (the other joint tenant) evidenced a common intention by them to sever the joint tenancy. This was not the subject of argument before me at the hearing and, accordingly, it is not appropriate for me to reach any view on this matter. While the defendant and his wife remain joint tenants, there is a real question as to whether the undertaking proffered by the defendant is sufficient to protect the plaintiffs against the risk which justified the granting of the Orders.
[26] Edgeworth B, Butt's Land Law (2017, 7^th ed) [1404].

Conclusion

For these reasons, I have concluded that the Undertakings should be varied to enable the defendant to pay his reasonable legal costs in defending both these proceedings and the criminal proceedings.
At present, there is insufficient evidence as to how the estimate of costs in excess of $300,000 has been calculated or the timeframe over which these costs may be incurred. If these estimates are accurate, these costs will absorb almost the entirety of the Proceeds.
At this stage, I consider that the Undertakings should be varied to enable the payment of legal costs of $72,667.75 from the funds held on trust by the defendant's former solicitors. This will enable payment of the defendant's existing obligations to his solicitors in the criminal proceedings and allow for costs of $20,000 to be paid in these proceedings. If the defendant wishes to obtain an order to further vary the Undertakings, this will need to be supported by detailed evidence that sets out the basis for the estimate and when these costs are likely to be incurred.
Finally, I note that these proceedings were commenced in June 2019. At present, more than 200 documents have been filed without the matter having been entered for trial. This has inevitably led to the incurring of significant costs by the parties as well as a disproportionate use of court resources. With this application now having been heard and determined, the parties should focus their attention on progressing this matter to trial as quickly as possible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
7 NOVEMBER 2025