BY BUILDING GROUP PTY LTD -v- COSTELLO [2026] WASC 51 (26 February 2026)

1. Counsel for the plaintiff properly recognised that the first issue to address on this application was that of personal service. The plaintiff had, at the date of the hearing of the application, been unable to effect personal service of the proceedings on the defendant.
2. The plaintiff accordingly sought an order for substituted service pursuant to O 72 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC), for service by email to stand as effective service. This rule has application where there is a requirement for personal service contained in the rules of the court. In this regard, I have proceeded on the basis that an originating summons filed pursuant to rule 24 of the Supreme Court (Arbitration) Rules 2016 (WA) (the Arbitration Rules) is required to be personally served by reason of the terms of O 9 r 5 of the RSC and rule 4(1) of the Arbitration Rules.
3. In support of the proposed order, the plaintiff relied on the affidavits sworn by Mr Douglas on 25 February 2026 and by Mr Bell on 26 February 2026. On my assessment, those affidavits demonstrate that:
   1. The application was emailed to the defendant and to the defendant's agent at their known email addresses on 19 February 2026, which email included notice of the hearing date of the application and alerted the defendant to the court's practice to hear and determine an enforcement summons on the first return where possible.
   2. The defendant has not responded to any of the email communications, however, the defendant's agent has responded, indicating that he had received notice of the application and the hearing date.
   3. The defendant's agent made a request to the plaintiff's solicitors that they forward the documents to a law firm in Perth. That was done, however, the law firm subsequently indicated that it did not hold instructions to accept service of the proceedings.
   4. Attempts were then made by the plaintiff to effect personal service on the defendant, without success.
   5. The plaintiff's solicitors informed the defendant and the defendant's agent by email that the plaintiff intended to seek final orders from the court at the hearing today. That email was sent to the court and copied to the defendant and the agent. The defendant's agent responded to that email, raising various factual issues and indicating that the law firm which I have identified above had been engaged to consider an appeal against the award. Some of the factual matters raised by the defendant's agent appear to be directed at a potential stay of the effect of the award, although no such application has been articulated with any precision.
   6. There was no appearance by the defendant or the defendant's agent at the hearing this morning.
4. In order to demonstrate that personal service is impracticable, it must be shown that the plaintiff, using reasonable efforts, is unable to effect personal service. The requirement of inability after reasonable effort is not a strict inability or the same as a practical impossibility; rather, it means a lack of success after reasonable effort.
5. In these circumstances, I was satisfied that an order for substituted service by email should be made, and that the service by email on 19 February 2026 should be taken as effective service. It is apparent from the manner in which the defendant conducted the defence of the arbitral proceedings that the agent in question is a proper person to receive communications on her behalf. Further, it is apparent from the agent's communications in February 2026 that he has a continuing role as a representative of the defendant. I was satisfied the plaintiff had properly brought the enforcement proceedings to the attention of the defendant.
6. Further, I was satisfied in the circumstances that the plaintiff should be permitted to proceed on its summons for enforcement, rather than require the proceedings be adjourned to a later date. I was satisfied the defendant and her agent had notice of the hearing, were aware of the importance of the hearing, and had not articulated any ground of substance which would justify a delay in the proceeding. In my respectful view, the defendant has had a fair opportunity to advance some reason which would justify a delay to these enforcement proceedings, and has not done so.
7. In this regard, I reiterate the view I expressed in Thierfelder v Kerrigan[1] that, in the absence of a clearly articulated basis under s 36 of the Act to resist enforcement of an award (and absent the filing of any appeal, or the articulation of proposed grounds of appeal), a defendant to a summons for enforcement of an award should expect in the ordinary course that the court will make final orders pursuant to s 35(1) of the Act on the first return of the summons (where there has been proper notice to the defendant), subject to satisfaction of the statutory requirements for enforcement.
8. Such an approach is consistent with the terms of s 36 and with the paramount object of the legislation as stated in s 1C of the Act.

1. As to the statutory requirements for enforcement of an award under the Act, in respect of which the plaintiff carries the burden of proof, I must be satisfied as to the following matters.[2]
2. First, I must be satisfied that the arbitral proceedings resulted in an award being pronounced by the appointed arbitrator - in this case, the Final Award. As to the evidentiary requirement in s 35(2) of the Act and r 24(2)(a) of the Supreme Court (Arbitration) Rules 2016 (WA) (the Rules), the affidavit material attached copies of the Final Award and the reasons of Mr Davis. The plaintiff did not adduce a copy of the building contract (and the arbitration agreement therein), but its existence was verified in the supporting affidavit and proof of such an agreement is not specifically required by s 35(1) of the Act. I am satisfied as to the existence of the Final Award.
3. Second, I must be satisfied the plaintiff has prepared the summons in accordance with Form 25, as is required by r 24(1) of the Rules. I am satisfied of this matter.
4. Third, I must be satisfied the summons was filed with a supporting affidavit which complies with r 24(2)(b) of the Rules. In particular, the affidavit must include a statement as to the extent to which the award had not been complied with at the date of the summons, and details of the address of the defendant. I am satisfied of these matters.
5. Fourth, and allied to the foregoing point, I must be satisfied on the undisputed evidence that there had not been compliance with the terms of the payment obligation in the Final Award. I am satisfied of this matter, on the affidavit evidence.

1. An application for enforcement of an award may only be refused on the bases set out in s 36 of the Act. There is no residual discretion vested in the Court to otherwise refuse enforcement. A party resisting enforcement carries the burden of proof to demonstrate that one or more of the matters in s 36 of the Act has been made out.
2. The defendant has not identified any matters which would provide a basis for this court to refrain from enforcing the award in this case.

1. For these reasons, I granted the relief sought by the plaintiff and made the following orders:
   1. Pursuant to O 72 r 4 of the Rules of the Supreme Court 1971 (WA), the plaintiff be permitted to effect service of the proceedings, by way of email communication to the defendant's email address [redacted] and by email communication to the person who represented the defendant in the arbitral proceedings, namely Mr David Okulicz [redacted], and that the service by the plaintiff effected in this manner on 19 February 2026 through its solicitors do stand as effective service of the proceedings.
   2. Pursuant to s 35(1) of the Commercial Arbitration Act 2012 (WA), the Final Award of Mr Simon Davis dated 29 January 2026 (awarding the total sum of $188,348.73) be enforced.
   3. Judgment be entered for the plaintiff against the defendant in the sum of $188,348.73, plus $30.96 interest per day at a rate of 6% per annum, totalling $$619.20 of interest, being a total judgment sum of $188,967.93.
2. Additionally, counsel for the plaintiff sought a costs order in the amount of $3,610 and explained at the hearing the various components of that claim, which included the filing fee of $1,960. The legal costs related to the preparation of the application document and affidavit materials, and the preparation and attendance at this morning's hearing. I was comfortably satisfied the amounts claimed by the plaintiff were reasonable and should be ordered in the context of the present application. I made an order that the defendant pay the plaintiff's costs of these proceedings fixed in the sum of $3,610, inclusive of the filing fee.

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

[1] Thierfelder v Kerrigan [2024] WASC 112.

[2] I explained the process for, and principles applicable to, applications for enforcement of awards more fully in Thierfelder v Kerrigan.