DUDLEY -v- POPE [2025] WASC 539 (16 December 2025)

(a) an order should be made regularising the indorsement of the service particulars on the amended originating summons so that the date of 6 August 2025 stand as an indorsement of service from and including 28 July 2025, for the purpose of O 9 r 1(4) RSC;

(b) judgment should be entered for the plaintiff against the defendant in default of appearance pursuant to O 13 r 9 RSC; and

(c) I may exercise my discretion to make an order for specific performance requiring the defendant to execute and deliver a transfer of land to the plaintiff and take the steps necessary to give effect to the transfer of the plaintiff's interest in the Property to the defendant.

1. The plaintiff has elected not to press his claim for default judgment in relation to his claim for damages to be assessed.

Materials relied upon in support of the Application

1. In support of the Application, the plaintiff relies on an outline of submissions filed on 17 October 2024 and affidavits of:

(a) Maximillian Livingstone Silbert affirmed on 28 November 2024, 8 April 2025 and 19 August 2025;

(b) Shannon O'Connor affirmed on 8 April 2025, 4 August 2025 and 17 October 2025;

(b) Pippa Peck affirmed on 27 June 2025, 1 August 2025 and 19 August 2025;

(c) Graeme Robert Coates sworn on 3 August 2025; and

(e) Sophia Rae Smythe affirmed on 17 October 2025 and 3 December 2025.

Procedural requirements and applicable principles

1. The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC and were considered by Lundberg J in David Allan Collison as administrator of the estate of Diane Carol Collison v Collison.[2]
2. Order 13 r 9 RSC applies where, as in this case, a plaintiff's claim is other than for the recovery of a debt, possession of land or detention of goods. The plaintiff in this case seeks specific performance, an equitable remedy.
3. The procedural requirements that must be satisfied for default judgment under O 13 r 9 RSC are:
   1. The proceeding must have been commenced by writ of summons.[3]
   2. Service of the writ on the defendant must be verified by affidavit, together with indorsement of service of the writ in accordance with O 9 r 1(4) RSC.[4]
   3. No appearance has been filed by the defendant within the time prescribed for appearing.[5]
   4. The plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant.[6]
4. Once the procedural requirements are satisfied, the court may consider the exercise of its discretion to grant default judgment for the relief sought.
5. Generally, in the absence of an appearance and any responsive pleading from the defendant, the allegations made in the statement of claim are deemed to be admitted.[7] An entitlement to the relief claimed must be disclosed in the plaintiff's pleading and evidence is not admissible to support or supplement the pleaded facts. However, where a plaintiff is seeking an equitable or discretionary remedy, the court must be sufficiently informed of the circumstances to properly exercise its discretion to grant or withhold the remedy. In those circumstances, evidence may be required and adduced.[8]

The relevant factual background and relief sought

1. The relevant factual background is derived from the affidavits filed in support of the Application, as indicated, and in respect of which I find as follows.
2. On 8 March 2016, the Federal Circuit Court made orders for sequestration against the estate of Mr Pope, and the plaintiff was appointed as Mr Pope's trustee in bankruptcy.[9]
3. Prior to Mr Pope's bankruptcy, he and the defendant were the registered proprietors of the Property as joint tenants.[10]
4. On 29 May 2018, the plaintiff became the registered proprietor of a one‑half share as tenant in common of the Property, in place of Mr Pope.[11]
5. On 22 December 2022, the plaintiff obtained a property (seizure and delivery) order in Federal Court proceedings against Mr Pope and the defendant requiring them to deliver up vacant possession of the Property to the plaintiff.[12]
6. On 8 February 2023, the plaintiff and the defendant entered into the Settlement Deed, pursuant to which the plaintiff agreed to sell, and the defendant agreed to buy the plaintiff's equitable interest in the Property for the sum of $130,000 (Settlement Sum).[13] Relevantly, pursuant to cl 3.2 of the Settlement Deed, the defendant and the plaintiff agreed that on payment of the Settlement Sum by the defendant to the plaintiff:

(a) the plaintiff would transfer to the defendant all of the plaintiff's interest in the Property;[14] and

(b) the defendant would do all things reasonably necessary and reasonably requested by the plaintiff to give effect to the transfer of the Property including, but not limited to, any necessary lodgements with Landgate or the Office of Revenue Western Australia (RevenueWA).[15]

1. The Settlement Sum was to be paid by two instalments.[16] The first instalment of $40,000 was payable,[17] and was paid, by the defendant to the plaintiff immediately upon execution of the Settlement Deed.[18] The second instalment of $90,000 was payable by the defendant to the plaintiff within three months of the date of execution of the Settlement Deed.[19]
2. At the defendant's request, the plaintiff agreed to extend the due date for the second instalment to 8 August 2023, and then again to 8 October 2023.[20]
3. As at 27 October 2023, the defendant had failed to pay the second instalment, and instead offered to pay the balance of the Settlement Sum by a payment of $40,000 to be paid immediately, and then at the rate of $1,000 per week until the balance of the Settlement Sum was satisfied.[21]
4. As at 2 May 2024, the defendant had paid the whole of the Settlement Sum to the plaintiff.[22] After the Settlement Sum was received by the plaintiff, the plaintiff's solicitors attempted to contact the defendant to arrange the transfer of the plaintiff's interest in the Property to her.[23] Despite the attempts made, the defendant has failed to reply and, in breach of cl 3.2(b) of the Settlement Deed, has not taken the necessary steps to give effect to the transfer of the Property from the plaintiff to her.[24]
5. There are no other significant assets of Mr Pope's bankrupt estate and the plaintiff wishes to finalise the administration of the bankrupt estate, and seeks orders for specific performance so that the transfer of the Property can be completed.

1. On 25 July 2025, the defendant was served with the amended originating summons, which is to be treated as a writ of summons pursuant to the orders made on 1 July 2025. She was also served with the statement of claim filed on 18 July 2025 and a copy of the orders made on 1 July 2025. Service was effected on the defendant by post and email in accordance with orders made on 11 December 2024 for substituted service.[25]
2. Also on 25 July 2025, the defendant was personally served with a copy of the statement of claim and the First O'Connor Affidavit.[26]
3. As noted, O 9 r 1(4) RSC provides that the plaintiff is not entitled to enter judgment against the defendant in default of appearance unless, within three days after service, the person serving it indorses on the sealed copy of the writ the specified particulars of service.
4. In this case, orders were made that the action proceed as if commenced by writ of summons, with the effect that the originating summons be treated as if it were a writ.
5. Ms Peck deposes in her affidavit affirmed on 19 August 2025 to having indorsed the particulars of service on the sealed copy of the amended originating summons on 6 August 2025 and attaches a copy of the indorsed amended originating summons.[27]
6. The plaintiff seeks to be relieved of the consequence of not having indorsed the particulars of service on the sealed copy of the amended originating summons (ordered to stand as the writ in this action) within three days of service. In support of this aspect of the Application, the plaintiff relies upon the affidavit of Mr Silbert affirmed on 19 August 2025, in which Mr Silbert explains the reason for the delay in instructing Ms Peck to indorse the service particulars.[28]
7. I gratefully adopt the following statement of Le Miere J in Cheney v Moore:[29]

The power to extend time to do an act pursuant to the rules is conferred by O 3 r 5. Order 3 r 5 provides that the court may, on such terms as it thinks just, by order extend the period within which a person is required or authorised by the rules to do any act in any proceedings. The rule is remedial and confers a power to relieve against injustice. It should be construed broadly. In my opinion, O 9 r 1(4) requires or authorises the person serving a writ to indorse the particulars of service within three days after service; and O 3 r 5 empowers the court to extend that time.

1. On the materials before the court, I am satisfied that it is appropriate to exercise the power to extend the time for the indorsement of the service particulars. However, as observed by Le Miere J in Cheney v Moore,[30] it is not clear whether that satisfies the requirement of O 9 r 1(4) RSC, that such be done within three days after service.
2. The indorsement of the service particulars, in this case, was six days later than the time within which it should have been done. This is a short delay, which I consider is an irregularity which may be rectified pursuant to the court's power under O 2 r 1 RSC.
3. The principles applied by Le Miere J in in Cheney v Moore,[31] apply equally here, in my view. As his Honour noted, the purpose of indorsing service particulars is to ensure there is a proper record of the particulars of service to provide proof the process was properly served. No prejudice is caused to the defendant by the failure to indorse the amended originating summons within three days of service.[32]
4. I will order that the indorsement of service particulars on the amended originating summons on 6 August 2025 stand as an indorsement of particulars of service for the purpose of O 9 r 1(4) RSC from and including 28 July 2025.
5. Counsel for the plaintiff tendered a certificate signed by the proper officer, as required under O 13 r 9(2)(b) RSC, certifying that no appearance has been entered by the defendant.[33] The defendant is on notice of the Application[34] and has not sought to oppose it or to be heard.
6. The procedural requirements having been satisfied, I proceed to consider the exercise of my discretion to grant default judgment for the relief sought.

Determination as to relief sought Order for specific performance

1. In my view, the evidence adduced by the plaintiff is sufficient to establish a basis for default judgment to be entered on the plaintiff's claim for specific performance, a mandatory order requiring the defendant to take all necessary steps to give effect to the transfer of the Property. The evidence supports the existence of the defendant's obligation under cl 3.2(b) of the Settlement Deed.[35]
2. The defendant has paid the Settlement Sum and is entitled to have the plaintiff's interest in the Property transferred to her, which would appear to be in her interest. Although it appears, from the defendant's communications with the plaintiff's lawyers, that the defendant has indicated that she will sign the transfer and take the steps necessary to give effect to the transfer, she has not done so and has not replied to the requests made of her.
3. The part of the agreement sought to be enforced concerns the transfer of land, a category of contracts for which the granting of specific performance is generally uncontroversial.[36] No equitable or other defence has been raised.
4. To the extent it may be said that specific performance applies to an order enforcing the whole of an agreement, the court may make a mandatory order to compel performance of a single positive contractual obligation.[37] This court has jurisdiction to grant injunctive relief which is analogous to specific performance of a contractual right.[38] The Court of Appeal set out the principles applicable to the grant of final injunctive relief in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2][39] which include, as is well established:

(a) a plaintiff is not entitled in equity to an injunction simply because the plaintiff's legal rights are breached or are in jeopardy;[40] and

(b) injunctive relief will ordinarily only be granted in equity's auxiliary jurisdiction, if damages are not ascertainable or otherwise not an adequate remedy.[41]

1. I am satisfied that, in the circumstances of this case, where the plaintiff is a trustee in bankruptcy and seeking to effect to the transfer of the Property to the defendant under the terms of the Settlement Deed, damages would not be an adequate remedy. Further, this is not a situation which would involve or require continued supervision of the court if an order is made to compel the defendant to take the necessary action to effect the transfer of the Property to her.
2. The orders sought seek to address the steps said to be required, as set out in the Third O'Connor Affidavit.[42] The first is for the defendant to sign a transfer of land (form TR1), in the form attached to the affidavit,[43] and the plaintiff's minute of proposed orders (Transfer Form), to transfer the interest in the Property held by the plaintiff to the defendant. I am satisfied that an order can be made in sufficiently clear terms requiring the defendant to sign the Transfer Form and to deliver it to the plaintiff.
3. As I indicated to counsel during the hearing of the Application, the terms of some of the other orders sought are, in my view, too broad and uncertain. The first of those orders is that the defendant provide to the plaintiff the documents (duly completed and signed where necessary) required by the Duties Requisition to be lodged with RevenueWA.[44] The terms of the Duties Requisition do not specify particular documents and I do not consider it is sufficiently clear, on its face, what the defendant would be required to do or provide.
4. The next step and order sought is for the defendant to provide the plaintiff with any information or documents required in order to comply with and respond to any further requisition by RevenueWA concerning the duty assessment for the Settlement Deed. I do not consider it appropriate to make orders in the terms sought. It is not known and is far from certain, at this stage, what if any further requisitions may be made by RevenueWA or what may be required of the defendant.
5. Lastly, the plaintiff seeks an order requiring the defendant to pay any duty and penalty tax assessed under or with respect to the Deed of Settlement and the Transfer Form by the due date. I do not consider it appropriate to make an order requiring the defendant to pay such duty, at this stage, where there is no present obligation to pay anything, and it is not known what, if any duty, may be payable and by when.
6. Counsel for the plaintiff indicated that, if I was not minded to make orders in the terms sought, the plaintiff would be content for orders to be made substantially in terms of the Application (as expressed in the amended originating summons). Those orders more closely align to the defendant's obligations under cl 3.2 of the Settlement Deed.
7. I am satisfied that it is appropriate to exercise my discretion to grant the equitable relief, an order for specific performance, in the narrower terms sought in the Application. The effect of the orders to be made will be to require the defendant to specifically perform her obligation under cl 3.2 of the Settlement Deed and to do all things reasonably necessary, and as reasonably requested by the plaintiff, to give effect to the transfer of the plaintiff's interest in the Property, including in respect of the necessary lodgements with Landgate or RevenueWA.
8. Specifically, the orders should require the defendant, within a stated period of time, to execute and deliver to the plaintiff the Transfer Form attached to the plaintiff's minute of proposed orders.
9. There should also be liberty to apply so that if, and when, any further necessary steps become known, further orders may be sought, if such are necessary to give effect to the transfer and may reasonably be required of the defendant.

1. Although the prayer for relief in the statement of claim includes a claim for damages to be assessed, there is no plea in the statement of claim to ground the relief sought.
2. The evidence adduced indicates that what is claimed by way of 'damages' are compensatory damages for breach of contract in respect of the plaintiff's unpaid remuneration, as trustee in bankruptcy, incurred in continuing to administer the bankrupt estate of Mr Pope because of the defendant's breach of the Settlement Agreement.[45] The plaintiff also seeks to recover the legal costs incurred in relation to the defendant's breach of the Settlement Deed.[46]
3. I indicated at the hearing of the Application that I was not satisfied that the plaintiff is entitled to default judgment for damages to be assessed. The plaintiff has subsequently elected not to press his claim for judgment to be entered in default in respect of the claim for damages.
4. Although that aspect of the Application is not pressed, for completeness, the reasons I was not satisfied that judgment should be entered against the defendant in default of appearance for damages are, as follows.
5. As observed in the plaintiff's outline of submissions, a prayer for relief must be connected to a statement of material facts in the statement of claim giving rise to a cause of action so that the defendant knows the case to be met.[47]
6. In an application for default judgment, relief is generally limited to what is asked for in the statement of claim to ensure fairness in the conduct of the litigation. The defendant should be on notice of the nature of the relief sought against them.[48] As Le Miere J observed in Cheney v Moore,[49] even if the statement of claim is clear on its face, the court has the discretion to refuse to give judgment if there is reason to think that the facts stated in the statement of claim do not justify the relief sought or injustice will otherwise result.
7. No material facts are pleaded in the statement of claim to the effect that the plaintiff has suffered loss and damage or the nature of any loss and damage claimed. The pleading does not put the defendant on notice of the specific relief sought in so far as the claim for damages is concerned.
8. A trustee in bankruptcy's remuneration is also subject to approval, as provided in div 60 of the Insolvency Practice Schedule (Bankruptcy), sch 2 of the Bankruptcy Act 1966 (Cth). The plaintiff's solicitors have informed the court that the remuneration the subject of the claim has not yet been approved and, as noted, this aspect of the claim is not pressed.

1. The plaintiff seeks its costs of the action and the Application to be paid by the defendant on an indemnity basis. It was submitted, in effect, that the defendant's conduct in this case is such as to warrant an order for indemnity costs. The plaintiff relied on communications from the defendant in which she acknowledges having received the 'paperwork' sent to her, which includes the Transfer Form, but has not signed and returned it or responded to the plaintiff's other requests.[50]
2. The plaintiff has some sympathy for the defendant's personal circumstances referred to in her communications but has been left with no choice than to proceed with the Application in the circumstances where, despite repeated attempts to contact the defendant to complete the necessary steps to transfer the plaintiff's interest in the Property to her, she has not responded or taken the necessary steps.
3. The plaintiff submitted that, if the court does not consider the circumstances are such as to justify an award of indemnity costs in relation to the entire action, indemnity costs should at least be awarded from 12 November 2025. On that date, the plaintiff's solicitors sent an email to the defendant putting her on notice that the plaintiff may seek an order for indemnity costs against her if she did not sign the Transfer Form, respond to their correspondence and provide information required to allow the transfer of the Property to be effected.[51]
4. The principles relating to indemnity costs are well established. They were set out in Swansdale Pty Ltd v Whitcrest Pty Ltd.[52] An award of indemnity costs is a departure from the usual order that costs be awarded on a party and party basis. Although the categories in which indemnity costs may be awarded are not closed, costs will usually only be awarded on an indemnity basis in exceptional circumstances.[53] One category in which an indemnity costs order may be made is as a sanction to mark the court's disapproval of improper or unreasonable conduct.[54]
5. Whether an order for indemnity costs should be made against a party that is not legally represented will depend on the circumstances of the case. In Tey v Optima Financial Group Pty Ltd,[55] Pullin and Newnes JJA said:

Where it is alleged that a person's conduct was improper or unreasonable so as to justify an order for indemnity costs, the fact that the person was without legal representation will ordinarily be a relevant factor in determining whether such an order is justified. What might be considered conduct warranting an indemnity costs order where a party is legally represented may not appear in the same light when account is taken of the lack of legal expertise of a litigant in person. That will necessarily depend upon the particular circumstances of the case. But where, after taking into account the lack of legal representation, the conduct of an unrepresented party is such as to warrant an indemnity costs order the court should not be reluctant to make such an order. Litigants in person have the capacity to inflict a great deal of unnecessary expense and hardship on other parties and the court should not stay its hand where such censure is properly called for.

1. I am not satisfied that an order for indemnity costs is warranted in relation to all of the plaintiff's costs of the action or the Application. However, following the plaintiff's agreement to adjourn the previous hearing and having put the defendant on notice that costs would be claimed on that basis, and the defendant's subsequent lack of engagement, I consider the plaintiff's costs from and including 12 November 2025 should be paid by the defendant on an indemnity basis.

1. For these reasons, I am satisfied that it is appropriate to:

(a) make an order that the date for the indorsement of service particulars indorsed on the amended originating summons on 6 August 2025 stand as an indorsement of service from and including 28 July 2025 for the purpose of O 9 r 1(4) RSC;

(b) enter judgment in default of appearance against the defendant pursuant to O 13 r 9 RSC in relation to the plaintiff's claim for specific performance; and

(c) make an order requiring the defendant to specifically perform her obligation under cl 3.2 of the Settlement Deed and to do all things reasonably necessary, and as reasonably requested by the plaintiff, to give effect to the transfer to her of the plaintiff's interest in the Property, including in respect of the necessary lodgements with Landgate and RevenueWA.

1. The orders to be made in relation to specific performance will require the defendant, within a specified time, to execute (as transferee) and deliver to the plaintiff a transfer of land in the form attached to the plaintiff's minute of proposed orders, which will be attached to the orders to be made as 'Annexure A'. Subject to hearing from the plaintiff, and given the time of year, I propose that date be within 28 days of service of the orders to be made on the defendant.
2. There will be liberty for the parties to apply in relation to any further necessary orders to give effect to the transfer of the plaintiff's interest in the Property to the defendant, including in relation to any further documents to be signed or information to be provided by the defendant to the plaintiff.
3. There will also be an order that the defendant is to pay the plaintiff's costs of the action and of the Application, to be taxed if not agreed. The plaintiff's costs incurred from and including 12 November 2025 are to be taxed and paid on an indemnity basis.
4. The orders should also include a penal notice in relation to the orders for specific performance and a notice to the defendant of her right to apply under O 13 r 14 RSC for an order setting aside or varying the judgment, and for an order suspending the enforcement of all or any part of the judgment under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
5. On the evidence before the court, I am satisfied that service of the orders (together with a copy of these reasons) on the defendant by substituted service in accordance with the orders made on 11 December 2024, as amended on 16 December 2024,[56] will be good and sufficient service. It is clear from the recent communications between the parties that the defendant continues to reside at the Property and to use the email address referred to in those orders.

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

[1] Affidavit of Sophia Rae Smythe affirmed on 3 December 2025 (Second Smythe Affidavit).

[2] David Allan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87 [12] - [17], [19] - [21].

[7] City of Stirling v Dueschen [2011] WASC 126 [48] (Martin J); Faithfull v Woodley [1889] UKLawRpCh 192; (1890) 43 Ch D 287, 289.

[8] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513 [42]; Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638, 646.

[9] Affidavit of Shannon O'Connor affirmed 8 April 2025 (First O'Connor Affidavit) [4] - [5], 'SO-1', 'SO‑2'.

[10] First O'Connor Affidavit [7], 'SO-3'.

[11] First O'Connor Affidavit [8], 'SO-4'.

[12] First O'Connor Affidavit [13], 'SO-5'.

[13] First O'Connor Affidavit [15], 'SO-6'.

[17] Settlement Deed cl 1.1 (definition of 'First Payment').

[19] Settlement Deed cl 1.1 (definition of 'Second Payment').

[20] First O'Connor Affidavit [18] - [19].

[21] First O'Connor Affidavit [20], 'SO-7' cl 3(a)(ii).

[23] First O'Connor Affidavit [24] - [25], 'SO-8'.

[25] Affidavit of Pippa Peck affirmed 1 August 2025 [6] - [9], 'PP-1', 'PP-2'.

[26] Affidavit of Graeme Robert Coates sworn 3 August 2025 [4] - [16], 'GRC-1', 'GRC-2'.

[27] Affidavit of Pippa Peck affirmed 19 August 2025 [7] - [10], 'PP-1'.

[28] Affidavit of Maximillian Livingstone Silbert affirmed 19 August 2025 (Third Silbert Affidavit) [7] ‑ [10].

[29] Cheney v Moore [2020] WASC 227 [11].

[31] See Cheney v Moore [14] - [16].

[34] Affidavit of Shannon O'Connor affirmed 17 October 2025 (Third O'Connor Affidavit) [16(a)]; Second Smythe Affidavit [10], 'SS-7'.

[35] Affidavit of Sophia Rae Smythe affirmed 17 October 2025 [6] - [10], 'SS-1' - 'SS-3'.

[36] See Coulls v Bagot's Executor & Trustee Company Ltd [1967] HCA 3; (1967) 119 CLR 460, 503; Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142, 153 - 154.

[37] See Heydon J D, Leeming M J and Turner P G, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2015) [21-445] and the authorities referred to.

[38] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (Sino Iron v Mineralogy [No 2]) [132] ‑ [134] (Buss P, Murphy JA, Beech J) and the authorities referred to.

[39] Sino Iron v Mineralogy [No 2] [126] - [129] and the authorities referred to.

[40] Sino Iron v Mineralogy [No 2] [128], referring to Proctor v Bailey [1889] UKLawRpCh 138; (1889) 42 Ch D 390, 398; Lawrence v Fenn Tigers Ltd [2014] UKSC 13; [2014] AC 822 [150] - [160]; Equity: Doctrines and Remedies [21-040].

[41] Sino Iron v Mineralogy [No 2] [128], referring to Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 600 [11]. See also Sino Iron v Mineralogy [No 2] [134] - [137].

[42] Third O'Connor Affidavit [16(c)].

[44] The Duties Requisition is defined in the Third O'Connor Affidavit [12] and is a letter dated 13 October 2025 addressed to RSM Australia from RevenueWA, a copy of which is attached as 'SO‑12'.

[45] First O'Connor Affidavit [29] - [31]; Third O'Connor Affidavit [17] - [22], 'SO-15', 'SO-16'.

[46] First O'Connor Affidavit [32] - [35], 'SO-9'; Third O'Connor Affidavit [23] - [27], 'SO-17', 'SO-18'.

[47] Hasleby v Dragicevich [2001] WASC 206; (2012) 43 WAR 350 [25]. See also 3Meg.Com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASC 128 [73]; F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290 [135] ‑ [136].

[48] See Faithfull v Woodley [1889] UKLawRpCh 192; (1890) 43 Ch D 287, 289; Australian Competition and Consumer Commission (ACCC) v Dataline.Net.Au Pty Ltd [2006] FCA 1427 (ACCC v Dataline.Net.Au) [46] - [49].

[50] Second Smythe Affidavit [8], 'SS-5', [9], 'SS-6'.

[51] Second Smythe Affidavit [10], 'SS-7'.

[52] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) (Swansdale) [10] (Pullin JA, Kenneth Martin J).

[54] Swansdale [10] (7), (10), citing Colgate-Palmolive Company v Cussons Ltd (1993) 46 FCR 225, 233 (Sheppard J), referred to in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [25] (Pullin J).

[55] Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 [16], cited with approval in Frigger v Kitay [No 2] [2017] WASCA 139 (S) [6] (Martin CJ, Murphy & Beech JJA).

[56] Orders of Registrar Griffin made on 11 December 2024, as amended by the Orders of Registrar Nelson made on 16 December 2024.