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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whymark Nominees Pty Ltd v Mitchell [No 2]

Details

AGLC: Whymark Nominees Pty Ltd v Mitchell [No 2] [2025] WASC 463
Case: [2025] WASC 463
Decision Date: 7 NOVEMBER 2025

CaseChat Overview and Summary

The case involved Whymark Nominees Pty Ltd as the plaintiff and Mitchell as the defendant. The primary dispute centred around the plaintiff's application for the continuation of a freezing order and the defendant's application to vary the undertakings. The matter was heard in the Federal Court of Australia. The plaintiff sought to maintain the freezing order that restrained the defendant from dealing with his assets, while the defendant aimed to modify the undertakings provided to the court and sought permission to pay his legal costs.

The court needed to determine whether a separate undertaking could replace the existing freezing order. Additionally, it had to decide if the undertaking or the freezing order should be altered to allow for the payment of the defendant's legal costs. Furthermore, the court assessed whether the defendant had adequately disclosed all his assets and whether he had fulfilled his burden of proving the quantum of his legal costs. These issues were assessed based on the unique facts of the case.

The court examined the circumstances and concluded that the defendant had not sufficiently demonstrated that a separate undertaking could adequately replace the freezing order. It also found that the defendant had not discharged the onus to provide sufficient disclosure of his assets. Consequently, the court denied the defendant's application to vary the undertakings and to pay his legal costs from the assets subject to the freezing order. The plaintiff's application for the continuation of the freezing order was granted, and the defendant's application to vary the undertakings and to pay his legal costs was dismissed.

The final orders of the court maintained the freezing order against the defendant's assets and denied the defendant's requests to vary the undertakings and to pay his legal costs from the assets subject to the freezing order. The court did not make any further orders regarding the disclosure of assets or the quantum of legal costs, as these issues were not fully resolved in the proceedings.

Orders