BANK OF QUEENSLAND LIMITED -v- FAHY [2025] WASC 180 (16 May 2025)

1. Mr Fahy did not file any affidavit in opposition to the Application. Rather, he relies on submissions filed 24 February 2025 (Fahy February Submissions). Although the Fahy February Submissions are not in the proper form, by order made by a registrar on 5 March 2025 they were accepted for filing. Some other materials sent to the court by Mr Fahy were annexed to the Williams Affidavit, in particular 'WW‑12', 'WW-17' and 'WW-18'. I have considered that material.
2. At the hearing, Mr Fahy expressed the concern that he only received the Hayes Affidavit, and minute of proposed orders that accompanied it, the preceding day and had not had time to consider them. I provided him with a copy of each. I then allowed him a further seven days to file and serve any affidavit or submissions in response. I also allowed him the annexe to his submissions any other material which he had sent to the court (though not filed) in which he says he set out his defence. I also allowed BOQ to file submissions in reply.
3. On 7 May 2025 Mr Fahy filed a document entitled 'Statement of defence'. It purports to be sworn. However, it is not in the proper format of either a defence or an affidavit. I will treat it as submissions (Fahy May Submissions).
4. On 13 May 2025, BOQ filed responsive submissions (BOQ Further Submissions).
5. For the reasons which follow, BOQ is entitled to summary judgment in the terms sought.
6. In conducting the hearing and determining the Application, I was, and am, mindful that Mr Fahy is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.[2] The court is required to approach the documents in which he articulates his case with some flexibility.[3] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[4] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[5]
7. One 'abiding difficulty' faced by the court is 'the tension between the duty of a ... judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[6] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[7] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[8]

2. Should BOQ be granted leave to commence the Application out of time?

1. As mentioned, the Application was commenced on 14 January 2025. Mr Fahy entered his appearance on 2 September 2024, so the Application was required to have been commenced within 21 days of that date, being 23 September 2024. However, the court may grant an applicant leave to commence an application for summary judgment after that date.[9]
2. The policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings before unnecessary expense has been incurred.[10] The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and may be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant.[11] In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time.[12] Ordinarily, the plaintiff should explain the delay and show that it was justifiable in the circumstances.[13]
3. The prospects of the application are also relevant. To proceed to trial, with the expense involved, when there is no defence to an action, would of itself be contrary to modern principles of case management. Thus, where an application has some merit, the requirements for leave will not ordinarily be demanding.[14]
4. After the appearance was entered on 2 September 2024, there was some communication between Mr Fahy and BOQ. On 27 September 2024, Mr Fahy sent to BOQ's lawyers a document entitled 'preliminary defence and Affidavit of Truth and Statement of Fact'.[15] There was then a hearing on 11 October 2024 before a registrar at which Mr Fahy was ordered to file a defence and any counterclaim by 25 October 2024. By orders made on 15 November 2024, that date was extended to 6 December 2024. The court file indicates that there was various correspondence between Mr Fahy and the court around that time. Ultimately, Mr Fahy did not file any defence and/or counterclaim. There were programming orders for BOQ to file any application for summary judgment by 20 December 2024, which it did not meet. In any event, compliance would not have obviated the need for BOQ to seek leave out of time.[16]
5. The Application was still brought at an early stage of proceedings, before any real expense had been incurred. Mr Fahy did not file any evidence identifying any specific prejudice due to the delay. The delay of about 4 months is adequately explained by case management over this period which was designed to give Mr Fahy the opportunity to place his defence on the record. This was obviously relevant to the decision by BOQ as to whether or not to seek summary judgment. The prospects of the Application, as will be seen, are compelling. A grant of leave is appropriate.

1. I find the following facts established from the affidavits relied on by BOQ.
2. Mr Fahy is the registered proprietor of the Land. A copy of the certificate of title is annexed to the Williams Affidavit.[17]
3. On or about 22 November 2012, Mr Fahy entered into a written loan agreement (Loan Agreement) with Members Equity Bank Pty Ltd (ABN 56 070 887 679) (ME Bank) and was allocated loan reference number 013871307 (Facility). What is deposed to be true copies of the documents comprising the Loan Agreement are annexed to the Williams Affidavit.[18] The documents were signed on behalf of BOQ.[19] The documents were signed by Mr Fahy on a number of pages including that marked 'Borrower's Acceptance'.[20] One document referred to in the Williams Affidavit, being additional terms and conditions, was inadvertently omitted. This omission was corrected in the Hayes Affidavit.[21] This document was also signed on behalf of BOQ and by Mr Fahy. [22]
4. On or about 28 February 2022, BOQ became the successor in law to ME Bank pursuant to Financial Sector (Business Transfer and Group Restructure) Act 1999 (C'th) s 22. A copy of the certificate is annexed to the Williams Affidavit.[23] Accordingly, I will simply refer to BOQ throughout these reasons.
5. The relevant terms of the Loan Agreement were that:[24]

(a) the amount borrowed was $341,232 (Loan);

(b) the term was 30 years;

(c) Mr Fahy was to make monthly instalment payments;

(e) the interest payable was variable, being 8.37% at the time the Williams Affidavit was sworn;

(e) the loan would be secured by a first registered mortgage over the Land;

(f) Mr Fahy would be in breach of the Loan Agreement if, among other things, he failed to repay the Loan in accordance with the Loan Agreement or failed to comply with terms of the Loan Agreement;

(g) if there was an event of default and the default was not remedied within the notice period required by law, then the Loan would become immediately due and payable by Mr Fahy and BOQ would become entitled to exercise any powers conferred on it by law, the Loan Agreement or the mortgage; and

(h) if an event of default occurred, any enforcement expense which BOQ reasonably incurred or expended in enforcing the Loan Agreement (including all legal costs) would be debited to Mr Fahy's Loan account and upon notification in writing of any enforcement expenses on the next statement being provided by BOQ to Mr Fahy, Mr Fahy agreed to pay those enforcement expenses immediately on the date of debiting the Loan account.

1. The Facility was ultimately split into two separate facility accounts, which continued to be governed by the Loan Agreement. The facility accounts under the Loan Agreement were allocated account numbers 013871307 (Facility 013871307) and 014938065 (Facility 014938065).[25]
2. By an instrument of mortgage dated 18 December 2012, and registered on the certificate of title of the Land on 19 December 2012 as dealing number M139470 (Mortgage), Mr Fahy mortgaged the Land as security for the payment of the Loan. This secured the sums advanced pursuant to both Facility 013871307 and Facility 014938065. What is deposed to be a true copy of both the Mortgage and the incorporated Memorandum of Common Provisions number G315872 (Memorandum) is annexed to the Williams Affidavit.[26]
3. The terms of the Mortgage and Memorandum relevantly included that if an event of default occurs BOQ shall serve any notice required by law, and if such notice (if any) has not been complied with then:[27]

(a) the moneys owed to BOQ shall immediately become due and payable; and

(b) in addition to any other powers conferred on BOQ, BOQ can do anything that BOQ can lawfully do in respect of the Land as if it was the absolute owner of the Land including any of the following:

(i) take possession of the Land;

(ii) evict Mr Fahy from the Land;

(iii) sell the Land; and

(iv) exercise any power or right conferred under the Mortgage or Loan Agreement or the law at the time.

Further, the Mortgage and Memorandum empowered BOQ to recover from Mr Fahy any reasonable costs incurred by BOQ which are reasonable to the exercise of its powers under the Mortgage.

1. On 18 December 2012, over five transactions, $341,232.00 was deposited by BOQ into Mr Fahy's account, being the initial facility account 013871307.[28]
2. On 26 October 2022, Mills Oakley, on behalf of BOQ, issued a written notice of default and demand by registered post to Mr Fahy, at the Land, pursuant to National Credit Code (NCC) s 88 and Transfer of Land Act 1893 (WA) (TLA) s 106 to s 108 (First Notice):[29]

(a) informing Mr Fahy that he was in default under the Loan Agreement, Facility 013871307 and Mortgage;

(b) demanding payment in the sum of $2,601.22 being the total amount of arrears then outstanding under Facility 013871307 pursuant to the Loan Agreement and the Mortgage; and

(c) notifying Mr Fahy that if he failed to make payment as demanded within 31 days of the date of service, BOQ would proceed to exercise its power of sale and all of its powers, rights, and remedies as it considered appropriate.

1. Mr Fahy failed to make payment to BOQ of the amount demanded within the First Notice in the time stipulated therein or at all.[30]
2. Ms Williams deposes that the failure to comply with the First Notice meant that the Loan was accelerated in accordance with its terms and BOQ was entitled, amongst other things, to take steps to enforce the Mortgage over the Land.[31] As a matter of law, I agree with this conclusion.
3. As at the date of the Hayes Affidavit, 29 April 2025:[32]

(a) no payment has been made towards the Loan in respect of Facility 013871307 since 15 June 2023;

(b) the total balance outstanding on Facility 013871307 is in the amount of $96,120.92; and

(c) no communication has been received by BOQ to the effect that Mr Fahy has any intention to make payment towards Facility 013871307.

1. On 26 October 2022, Mills Oakley, on behalf of BOQ, issued a written notice of default and demand to Mr Fahy by registered post at the Land, pursuant to NCC s 88 and TLA s 106 to s 108 (Second Notice):[33]

(a) informing Mr Fahy that he was in default under the Loan Agreement, Facility 014938065 and the Mortgage;

(b) demanding payment in the sum of $6,753.98, being the total amount of arrears then outstanding under Facility 014938065 pursuant to the Loan Agreement and the Mortgage; and

(c) notifying Mr Fahy that if he failed to make payment as demanded within 31 days of the date of service, BOQ would proceed to exercise its power of sale and all of its powers, rights and remedies as it considered appropriate.

1. Mr Fahy failed to make payment to the plaintiff of the amount demanded within the Second Notice in the time stipulated therein or at all.[34]
2. Ms Williams deposes that the failure to comply with the Second Notice means that the Loan is accelerated and BOQ is entitled, amongst other things, to take steps to enforce the Mortgage over the Land.[35] Again, as a matter of law, I agree with this conclusion.
3. As at the date of the Hayes Affidavit, 29 April 2025: [36]

(a) no payment has been made towards the Loan in respect of Facility 014938065 since 29 June 2023;

(b) the total balance outstanding on Facility 014938065 is in the total amount of $276,273.49; and

(c) no communication has been received by BOQ to the effect that Mr Fahy has any intention to make payment towards Facility 014938065.

1. The Williams Affidavit concludes by Ms Williams deposing:[37]

(a) the plaintiff advanced the Loan to the defendant...

(b) the Loan was, and is secured, by the Mortgage...

(c) the defendant has had the benefit of the Loan since the date it was advanced to him...

(d) the plaintiff issued the First and Second Notices in accordance with the Loan Agreement, Memorandum and relevant Law, which the defendant failed to comply with...

(e) pursuant to the terms of the Mortgage and Memorandum, the plaintiff is expressly entitled to take possession of the Loan...

(f) the defendant has failed to file and serve a defence in response to the Writ of Summons in accordance with the 15 November Orders...

(g) none of the various handwritten documents that the defendant has provided to the plaintiff in these proceedings to date... articulate a coherent or justifiable defence to the Writ of Summons,

I verily believe that there is no defence to the plaintiffs claim in the Writ of Summons and no other reason (subject to the Court granting the plaintiff leave to bring the Application) why the matter should not be resolved summarily.

4. Has BOQ established a prima facie right to summary judgment?

1. The principles by which an application for summary judgment is to be determined were recently summarised by the Court of Appeal in Kounis v Westpac Banking Corporation in the following terms:[38]

Summary judgment is a procedure designed to deal with cases that are not fit for trial. The power to determine a proceeding summarily must be attended with great care - sometimes expressed in terms of 'exceptional caution'. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial, that summary judgment ought properly to be granted. The claimant carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted and that judgment should be given for the claimant. If the claimant can establish a prima facie right to summary judgment, the burden then shifts to the defendant to satisfy the court why judgment should not be given against him or her. In this respect the defendant has an evidentiary burden. However, the overall burden of persuasion remains on the party moving for summary judgment.

1. I find that the preconditions to the exercise of the court's power in RSC O 14 have been satisfied:

(a) the action is one to which RSC O 14 applies; and

(b) the plaintiff has served a statement of claim on Mr Fahy (which was endorsed on the writ).

Further, as required by RSC O 14 r 2(1), I am satisfied that BOQ has filed affidavits verifying the facts on which the claim is based, as set out in the pt 3. Ms Williams also deposes that she believes that Mr Fahy does not have a defence to the claim by BOQ [33].

1. Accordingly, BOQ has satisfied all the requirements of RSC O 14 so as to give it a prima facie right to summary judgment.

5. Does Mr Fahy have an arguable defence to the claim?

1. The burden then shifts to Mr Fahy to satisfy the court why judgment should not be given against him. This is an evidentiary burden, the overall legal burden of persuasion remaining on BOQ as the applicant.[39]
2. Specifically, Mr Fahy must satisfy the court 'with respect to the claim ... that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim'.[40] Mr Fahy does not have to show a defence on the balance of probabilities, but he must at least show cause why there is an arguable defence.[41]
3. Mr Fahy has not filed a defence. I have carefully read the Fahy February Submissions, the Fahy May Submissions and all the other material before the court in which Mr Fahy says he sets out his defence (see [4] and [6]). In assessing these documents, at times Mr Fahy makes factual assertions which ought properly to have been the subject of affidavit evidence. I will take these assertions as submissions. Even with that indulgence, the documents relied on do not disclose anything resembling an arguable defence.
4. The following paragraph is indicative of the arguments made:[42]

i christopher-francis openly state the SUPREME COURT OF WESTERN AUSTRALIA HELD AT PERTH... is a maritime vessel that is "held" in dry dock. It is a trusteeship. This vessel is flagged under THE COMMONWEALTH OF AUSTRALIA which is a foreign corporate entity registered under USSEC CIK 0000805157 to the address 1601 Massachusets Avenue N.W C/O AUSTRALIAN EMBASSY WASHINGTON DC, 20036. The jurisdiction of the COMMONWEALTH OF AUSTRALIA is only the waters around the islands of Norfolk Island Christmas Island and the Cocos and Keeling Islands, and any trusts created by this entity.

i christopher-francis openly state that land cannot be administered from the sea or a vessel from it and any attempt to do so is an act of piracy and robbery ashore.

• 41 The matters raised by Mr Fahy embody what courts have taken to refer to as 'pseudo-law'.[43] Pseudo‑law is not law.[44] Arguments of the type which Mr Fahy seeks to raise have been repeatedly rejected by this court, including when raised to resist enforcement of a mortgage.[45] As Lemonis J observed in Moir:[46]

In effect, the defendant seeks to construct a distinction between himself as a living person and his legal status or personality. That proposition has been routinely rejected by courts throughout Australia... The defendant's propositions do not provide any arguable defence or any basis upon which summary judgment should not be granted.

That conclusion applies with equal force to the present case.

1. There were, however, three matters which Mr Fahy referred to in oral submissions and in the Fahy May Submissions which warrant further consideration.
2. The first matter is that the court could not be satisfied that the documents relied on by BOQ were properly executed by both BOQ and him, and that he in fact agreed to the terms relied on by BOQ.
3. I have set out at in footnotes 19 and 20 the page references in the Williams Affidavit where both BOQ (ME Bank) and Mr Fahy have signed the relevant contracts. The Hayes Affidavit also shows this.[47] For example, in the Hayes Affidavit, the following clause appears in relation to acceptance on page 6 of the 10 page document:[48]

Section 7 - Accepting this offer

Part A, Part B, Part C and Part D (enclosed) are important documents.

Before you accept this offer:

• read Part A, Part B, Part C and Part D carefully because they set out the terms of the legal binding loan contract that you will be entering into if you accept our offer. This Part A does not contain all the terms of your loan or all the information we are required to give you. Additional information and other terms of our offer to enter into a loan contract with you are set out in the other Parts(s) of your loan contract; and
• in any case, we recommend that you obtain independent legal advice.

You may only accept this offer by doing all of the following:

• signing and returning our offer (if there are two or more of you, all of you are to sign the Borrower's Acceptance); and
• signing and returning the Borrowers Acknowledgment attached to this letter (if there are two or more of you, all of you are to sign the Borrower's Acknowledgment).

You must accept (by signing and returning) this offer within 14 days after the date of this loan contract (or such later date as we decide) - otherwise, we have no further obligation to you and we may terminate this offer.

1. The offer is then signed on behalf of Members Equity Banks Pty Limited.
2. Then on page 9 (page 14 of the Hayes Affidavit) the following appears:

so that you know exactly what contract you are entering into and what you will have to do under the contract.

'THINGS YOU SHOULD KNOW ABOUT YOUR PROPOSED CREDIT CONTRACT'.

*Do not sign this contract document if there is anything you do not understand

*Once you sign this contract document, you will be bound by it. However, you may end the contract before you obtain credit, or a card or other means is used to obtain goods or services for which the credit is to be provided under the contract, by telling the credit provider in writing, but you will still be liable for any fees or charges already incurred.

You do not have to take out consumer credit insurance unless you want to. However, if this contract document says so, you must take out insurance over any mortgaged property that is used as security, such as a house or car.

*If you take out insurance, the credit provider can not insist on any particular insurance company.

*If the contract document says so, the credit provider can vary the annual percentage rate (the interest rate), the repayments and the fees and charges and can add new fees and charges without your consent.

*If this contract document says so, the credit provider can charge a fee if you pay out your contract early.

Underneath this box is a space for the borrower, 'Christopher Francis Fahy', to sign. There is a signature in this space which appears to be that of Mr Fahy. Mr Fahy has not filed affidavit evidence to the effect that this is not in fact his signature.

1. The final page is a 'Borrower's Acknowledgement' in the following terms:

BORROWER'S ACKNOWLEDGMENT

(to be completed by all borrowers)

YOU HAVE THE RIGHT TO OBTAIN INDEPENDENT LEGAL ADVICE BEFORE SIGNING THIS LOAN CONTRACT. IT IS IMPORTANT THAT YOU UNDERSTAND WHAT YOU ARE SIGNING.

I/we have read the loan contract (the letter of offer and the booklet(s) of additional terms and conditions) and I/we understand the nature and effect of the loan contract and my/our obligations under it, including without limitation:

• I/we understand that the amount being borrowed must be repaid with interest, fees and charges in accordance with the terms of the loan contract.
• I/we understand that, even though there may be other borrowers, the credit provider may require me/us to pay the whole of the amounts owing under the loan contract and may take legal action against me/us to recover the amounts owing under the loan contract.
• I/we understand that, if the loan contract says that I/we have to give a mortgage and there is a default, the credit provider may sell the mortgaged property and I/we may still owe money.

I/we have signed this load contract freely and voluntarily.

I/we acknowledge that: (please tick one of the following)

 I/we have obtained independent legal advice about the loan contract

or

 I/we have chosen not to take independent legal advice about the loan contract.

There is a tick against the box: 'I/we have chosen not to take independent legal advice about the loan contract'. Again, underneath there is a space for the borrower, 'Christopher Francis Fahy', to sign. There is a signature in this space which appears to be that of Mr Fahy. Again, Mr Fahy has not filed affidavit evidence to the effect that this is not in fact his signature.

1. The terms and structure of this document make it clear that Mr Fahy was agreeing to its terms as whole, including the documents incorporated by specific reference. Where a party signs a contract, he is taken to agree with all the terms of the contract.[49]
2. Mr Fahy also asserts that the contracts were not signed by ME Bank as required by Corporations Act 2001 (C'th) (CA) s 126.[50] CA s 126(1) provides that a 'company's power to make, vary, ratify or discharge a contract, or execute a document (including a deed), may be exercised by an individual acting with the company's express or implied authority and on behalf of the company'. That is what has occurred in the present case. There is nothing to suggest that the representatives of ME Bank who executed the relevant documents were not properly authorised to do so.
3. The second matter raised by Mr Fahy is that BOQ has not adduced evidence as to the source of the funds which it says it lent to him. However, it does not need to. As a matter of law it is sufficient for BOQ to give evidence that the funds were in fact advanced by it to Mr Fahy. The bank statements annexed to the Williams Affidavit show that on 18 December 2012, over five transactions, $341,232.00 was deposited by BOQ into Mr Fahy's account, being the initial facility account 013871307.[51]

• 51 Mr Fahy advances an argument to the effect that the money lent was actually his in the first place, in particular from a trust created at his birth of which he is a beneficiary, and from which banks draw funds which are lent.[52] This is a pseudo law concept for which there is no basis in law, fact or reality.

1. The third matter is an assertion that the relevant agreements were entered into as a result of fraud or deceit by BOQ (or ME Bank).[53] It is the case that, at common law, a party who enters into contract in reliance on a fraudulent representation by the counterparty, may elect to rescind the contract.[54] However, there is absolutely no evidence (or material that could be made evidence) to the effect that the contracts which BOQ seeks to enforce were entered into by reason of any fraudulent misrepresentation on its part (or that of ME Bank).
2. In my assessment, Mr Fahy has not shown cause why he has an arguable defence.

6. Is there 'some other reason' not to award summary judgment in relation to either claim?

1. On an application pursuant to RSC O 14, the court may also decline to award summary judgment if the defendant satisfies the court 'that there ought for some other reason to be a trial of that claim'.[55] In Miles v Bull, Megarry J said with reference to this phrase:[56]

If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff.

This passage has been endorsed in this court.[57]

1. In relation to this ground, in Mavaddat v HSBC Bank Australia [No 2] Mitchell JA observed:[58]

The relevant part of O 14 requires that there be some other reason for there to be a trial of the claim or part thereof. It does not merely require that there be some other reason why judgment should not be immediately entered or enforced... It would be a waste of the resources of the parties and the court to require the trial of a claim which is certain to succeed.

1. On the material filed by Mr Fahy he has not satisfied me that that there ought for some other reason be a trial of the action so as to justify a refusal to grant summary judgment.

1. Even exercising the great care which I am required to, BOQ has readily persuaded me that it is clear that there is no real question to be tried. I have a high degree of certainty that, if this matter were to go to trial, BOQ would be entitled to judgment in the terms sought. The matters raised by Mr Fahy by way of defence are so clearly untenable that they cannot possibly succeed.[59]
2. BOQ is entitled to judgment.
3. I make one observation on the form of the orders sought in the minute of proposed orders filed 29 April 2025. Costs are sought pursuant to pursuant to clause 14.3(a) of the Loan Agreement and clause 12.1 Mortgage or alternatively, costs on such basis as this Honourable Court thinks fit, to be taxed if not agreed.
4. Clause 14.3(a) of the Loan Agreement provides that:[60]

If you are in default, you agree to pay us any reasonable enforcement expenses we reasonably incur or expend in exercising our rights under this loan contract or under the mortgage.

1. Clause 12.1 or the Mortgage provides that:[61]

12.1 If you are an individual

If you are an individual, when we ask, you must pay us any amount we, the mortgage manager, or an attorney or receiver reasonably incur or expend in enforcing this mortgage after you are in default. These may include expenses incurred in preserving or maintaining the property - such as insurance, rates and taxes payable for the property and, if you do any building work on the property, may also include any expenses incurred in finishing or varying or stopping that building work.

1. Parties to litigation may also be parties to a contract which contains plain and unambiguous provisions allowing for costs to be paid on a certain basis. The court is not bound to give effect to the contract and retains its discretion. However, the court should ordinarily exercise its discretion in a manner consistent with the contractual provisions.[62]
2. My preliminary view is that the court should give effect to the contractual provisions by making an order for indemnity costs in the usual terms, that is, that Mr Fahy pay BOQ's costs of the action on the basis that BOQ be paid all the costs incurred by it except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, it is completely indemnified for its costs. In this manner, the costs can readily be subject to the taxation process by the court, as opposed to disputes being determined as a matter of contract law.
3. I will hear from the parties as to the final form of the orders and costs. I request counsel for BOQ to prepare a minute of proposed orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 1(1).

[2] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).

[3] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).

[4] Sethi v Bhavsar [2020] WASCA 52 (Sethi) [27] (reasons of the court).

[5] Neil v Nott [1994] HCA 23 [5]; [1994] HCA 23; (1994) 68 ALJR 509, 510; [1994] HCA 23; (1994) 121 ALR 148, 150 (judgment of the court); Kounis v Westpac Banking Corporation [2023] WASCA 185 [8] (reasons of the court) (Kounis); Sethi [27].

[6] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 (Zerjavic) [74] (judgment of the court).

[7] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).

[10] Colonga Investments Pty Ltd 9as trustee for the P and D Panizza Family Trust) v Caranna [2023] WASC 368 [25] - [26] (Archer J) (Colonga); Diedler v Borowiec [2021] WASC 394 [59] (Strk AM) (Diedler); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [40] (Tottle J).

[11] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J) (Gallo); Colonga [27]; Commonwealth Bank of Australia v Deighton [2024] WASC 410 [16] (Russell M).

[14] Diedler [62]; Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [48] (Newnes JA).

[15] Williams Affidavit, annexure WW-12.

[16] Westpac Banking Corporation v Figliomeni [2024] WASC 292 [67] - [68] (Russell M).

[17] Williams Affidavit, annexure WW-1.

[18] Williams Affidavit, annexure WW-2.

[19] Williams Affidavit, annexure WW-2, page 21.

[20] Williams Affidavit annexure WW-2, pages 24 - 26.

[21] Hayes Affidavit, pars 9 and 10, annexure BMH-1.

[22] Hayes Affidavit, pars 9 and 10, annexure BMH-1.

[23] Williams Affidavit, par 10, annexure WW-3.

[24] Williams Affidavit, annexure WW-2, pages 16 - 23.

[26] Williams Affidavit, par 13, annexure WW-4.

[29] Williams Affidavit, par 17, annexure WW-7.

[33] Williams Affidavit, par 19, annexure WW-8.

[41] Kounis [9]; Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4] (reasons of the court).

[42] Fahy February Submissions, pages 3 and 4. See also: Fahy May Submissions, pages 8 - 9.

[43] See generally: Hobbs H, Young S & McIntyre J, 'The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand' [2024] UNSWLawJl 11; (2024) 47(1) UNSW Law Journal 309.

[44] Kelly v Fiander [2024] WASC 275 [36] (Musikanth J).

[45] Recent examples include: Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24] (reasons of the court); Norfina Limited v Fish [2024] WASC 471 [19] - [26] (Lundberg J) (Norfina); Commonwealth Bank of Australia v Deighton [2024] WASC 410 [89] - [90] (Russell M); Commonwealth Bank of Australia v Moir [2024] WASC 319 [86] - [91] (Lemonis J) (Moir).

[46] Moir [90]. See also: Norfina [106]; Kelly 2024 [26] - [31]; Kwok v City of Subiaco [2023] WASC 307 [40] (Whitby J); Branch v Town of Victoria Park [2013] WASC 231 [60] - [66] (Seaward J) (Branch); Kelly v Fiander [2023] WASC 187 [11] ‑ [13] (Vandongen J); Stefan v McLachlan [2023] VSC 501 [28] (Dixon J); Coles Supermarkets Australia Pty Ltd v Ga [2022] VSC 438 [17] (Hetyey AsJ); R v Sweet [2021] QDC 216 [1] - [6] (Cash DCJ).

[48] Hayes Affidavit, Annexure BMH 1, pages 11, 14 - 16.

[49] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; (2004) 211 ALR 342; (2004) 79 ALJR 129; (2005) Aust Contract R 90-204; [2004] HCA 52 [57] (Gleeson CJ, Gummow, Hayne, Callinan And Heydon JJ); George 218 Pty Ltd v Bank of Queensland Ltd (No 2) [2016] WASCA 182 [90] (Reasons of the court).

[52] Fahy May Submissions, pages 3 - 6, 11 - 12; Williams Affidavit, page 548.

[53] Fahy February Submissions, page 6; Fahy May Submissions, page 4.

[54] See for example: Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216.

[56] Miles v Bull [1969] 1 QB 258, 265 - 266 (Megarry J).

[57] McLean v Westpac Banking Corporation [2011] WASCA 224 [19] (reasons of the court); Rhodes v De Castro [2022] WASC 214 [28] (Hill J); HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [95] (Gething AM); Helmers v Como [2014] WASC 394 [59] ‑ [61] (Gething AM).

[58] Mavaddat v HSBC Bank Australia [No 2] [2016] WASCA 94 [103] (Mitchell JA, with whom Newnes JA agreed) (references omitted).

[59] Lee v Lawfirst Pty Ltd [2023] WASCA 166 [80] (judgment of the court).

[62] Rumball v Mortimore [2000] WASC 126 [15] - [17] (Owen J); Boon v Burt [2020] WASC 64 (S) [4] (Curthoys J); Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v Lt. Market St Pty Ltd [2021] WASC 4 (S) [15] (Strk AM).