GEOFFREY RALPH LYSTER in their own capacity and as trustee for THE G TRUST -v- 87 BAYVIEW TCE PTY LTD in its own capacity and as trustee for THE A TRUST [2025] WASC 136 (23 April 2025)

(a) Mr Marshall, sworn 25 October 2024 (Marshall Affidavit);

(b) Troy Figliomeni, a chartered accountant, affirmed 25 October 2025 (Figliomeni First Affidavit);

(c) Iain Freeman, a partner of the lawyers for the Marshall Parties, sworn 29 November 2024 (Freeman Affidavit);

(d) a second affidavit of Mr Figliomeni affirmed 4 March 2025 (Figliomeni Second Affidavit).

1. The Lyster Parties rely only on an affidavit Giovanni Carrello, a registered and official liquidator, sworn 14 February 2025 (Carrello Affidavit).
2. The Application was heard by me on 15 April 2025. At the conclusion of the hearing, I advised the parties that the Marshall Parties should be granted leave to apply for summary judgment, but that it should not be granted. However, the concerns raised by counsel for the Marshall Parties about the SSC had some merit. Accordingly, I made the following orders:
   1. The defendants have leave to bring the application for summary judgment filed 2 December 2024 (Application).
   2. The Application in so far as it sought summary judgment, be dismissed.
   3. The balance of the Application be adjourned to 26 May 2025 at 3:15pm,
   4. By 13 May 2025 the plaintiffs file and serve a minute of proposed amended substituted statement of claim.
   5. The action be admitted to the CMC list of His Honour Justice Gething.
   6. The action be listed for directions on 26 May 2025 at 3:15pm.
   7. The costs of the Application to date be the defendant's costs in the cause.

I said that I would provide reasons, which are as follows.

1. In coming to this decision, I considered the following issues:
   • What principles govern a defendants' summary judgment application?
   • What are the relevant terms of the Deed?
   • Do the Marshall Parties have a good defence on the merits?
   • What final orders are appropriate?

What principles govern a defendant's summary judgment application?

1. By RSC O 16 r 1(1) any defendant to an action may within 21 days after appearance or at any later time by leave of the court, apply to the court for summary judgment. The court may grant summary judgment if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits or that the action should otherwise be disposed of summarily. By RSC O 16 r 2(1) the plaintiff may show cause against the application by affidavit. Unless the court otherwise directs, the parties' affidavits may contain statements of information or belief provided that the sources and grounds for the information or belief are disclosed.[2]
2. The general principles that apply to a defendant's application for summary judgment under RSC O 16 r 1(1) were recently summarised by the Court of Appeal in Pisano v South Metropolitan Health Service in the following terms:[3]
   1. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried...
   2. Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail...
   3. At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff...
   4. If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given... The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.
   5. Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues... Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial... But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent...
   6. Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained...
   7. It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed...
   8. On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded...
3. The court went on to observe:[4]

In addition to these general principles, the appellant contended that matters of fact pleaded in the statement of claim must be accepted for the purpose of a summary judgment application, ie for the purpose of determining a summary dismissal application it is assumed that the facts as pleaded will be proved...

There is support for that proposition in some first instance decisions... Certainly, as a matter of practice, it is ordinarily appropriate on a O 16 RSC summary judgment application to proceed on the basis of an assumption that the facts alleged in the statement of claim can be established at trial. We would not, however, embrace and adopt the proposition in the broad and unqualified terms as advanced by the appellant. For example, in the same way that, as has been explained above, the court is not bound to accept uncritically every statement in an affidavit, so too there will be occasions on a defendant's summary judgment application where the court is not bound to accept all matters of fact pleaded in a statement of claim.

It is not necessary for the disposition of this appeal to further examine the circumstances in which the court might properly not accept a matter of fact as pleaded for the purpose of an O 16 RSC summary judgment application.

1. A copy of the Deed is annexed to the Marshall Affidavit.[5]
2. It is not in issue that the Deed was duly executed and binds the parties.
3. The Lyster Parties and the Marshall Parties are parties to the Deed. There are a eight other parties:

(a) Gilpin Holdings Pty Ltd (Gilpin);

(b) Downstream Nominees Pty Ltd (Downstream);

(c) Leonard Vincent Blyth (L Blyth);

(d) Jennifer Anne Allen (Allen);

(e) Allister Leon Blyth (A Blyth);

(f) Cluster Nominees Pty Ltd as trustee for the Cluster Nominees Superannuation Fund (Cluster);

(g) HEW Nominees Pty Ltd as trustee for the New Family Trust (HEW); and

(h) A L Blyth Pty Ltd as trustee for the Blyth Consulting Trust trading as Blyth Consulting.

1. Gilpin, L Blyth, Allen, A Blyth, Cluster and Hew are defined in the Deed as the 'Gilpin Parties'. The terms 'Lyster Parties' and 'Marshall Parties' are defined in the same manner as in this decision.
2. By clauses 2.1, 2.2, 2.3 and 2.4 , subject to complying with the terms of the Deed, the Lyster Parties, the Marshall Parties and the Gilpin Parties release all and any claims they have in relation to five lots of land, defined as Lot 9, Lot 92, Lot 26, Lot 9002 and Lot 543.[6]
3. By cl 2.5(a), the Lyster Parties and the Marshall Parties agreed and confirmed that:

(a) Gilpin is entitled to take any and all steps that it deems appropriate to subdivide and/or sell Lot 543 and Lot 9002; and

(b) they will execute all documents requested by Gilpin, acting reasonably, for the purposes of subdividing and/or selling Lot 543 and Lot 9002 in any manner or form that Gilpin considers necessary or desirable.

Clauses 2.5(b) to (f) contain some supplemental provisions to achieve this end which are not material for present purposes.

1. By cl 2.6 the Lyster Parties agreed to transfer Lot 26 to WA Landbank, who is going to sell it, and then pay the Lyster Parties $25,000 at settlement.
2. Clause 2.7 is central to the present action. It provides:

(a) The Marshall Parties agree and confirm that they shall be liable for payment of all accounting fees incurred in relation to the First Joint Venture and Second Joint Venture;

(b) The Marshall Parties shall, at their sole cost, dissolve and or wind up the First Joint Venture and Second Joint Venture within 30 days of the date of this Deed;

(c) The Lyster Parties hereby immediately revoke any and all powers of attorney granted to the Marshall Parties, Downstream or any one of them pursuant to the First Joint Venture and Second Joint Venture; and

(d) The Marshall Parties agree and confirm that any guarantee provided by the Lyster Parties in relation to the First Joint Venture and Second Joint Venture are herein revoked and of no further force and effect.

The phrases 'First Joint Venture' and 'Second Joint Venture' are defined as they are in the Marshall Parties defence and counterclaim in the 2018 Action.

1. Clauses 2.8 and 2.9 contain some machinery provisions which are not relevant for present purposes.
2. The balance of the Deed contains releases, bars and other procedural clauses usual to a settlement deed. The only clause relevant for present purposes is cl 3.4 which provides:

Except to enforce the terms of this Deed, this Deed may be pleaded or tendered by any Party as an absolute bar to any legal proceedings pursuant to the release contained in this Deed and all Claims or causes of action brought or made in breach of the terms of this Deed.

Do the Marshall Parties have a good defence on the merits? The central issue

1. The central issue in dispute in the present action is whether the Marshall Parties have complied with cl 2.7(b) of the Deed.

1. Mr Marshall deposes that the First Joint Venture and the Second Joint Venture have been wound up in accordance with cl 2.7(b) of the Deed. Specifically:[7]

I confirm that on 15 December 2020 I caused the First Joint Venture and the Second Joint Venture, as defined in the Deed of Settlement, to be wound up in accordance with clause 2.7(b) of the Deed of Settlement.

I did so by engaging Troy Figliomeni of Armada Accountants and Advisors to prepare all accounts and documents to terminate each of the First Joint Venture and the Second Joint Venture. I engaged Mr Figliomeni by email of 15 December 2020. Produced to me and attached and marked AJM-8 is a copy of the email of 15 December 2020 with its attachments.

Mr Figliomeni prepared financial statements for the period ended 31 December 2020 for each of the First Joint Venture and the Second Joint Venture and I provided copies of the documents to the plaintiffs. Produced to me and attached and marked AJM-9 and AJM-10 are copies of the financial statements for the period ended 31 December 2020 of the First joint Venture and the Second Joint Venture respectively. Those relating to the First Joint Venture are entitled "A Trust & G Trust Joint Venture" and those relating to the Second Joint Venture are entitled "Karakara Trust and G&D Lyster Joint Venture".

I relied on Mr Figliomeni's professional expertise to terminate each Joint Venture.

By reason of the matters in my affidavit, I believe that:

(a) each of the First Joint Venture and the Second Joint Venture has been wound up;

(b) the defendants have fully complied with the Deed of Settlement;

(c) the terms of the Deed of Settlement preclude the claims; and

(d) the first, second and third plaintiffs have no cause of action that will succeed and the proceedings are without prospect of success.

(a) he was the accountant for the First Joint Venture and the Second Joint Venture;[8]

(b) on 15 December 2020 he received instructions from Mr Marshall to do the accounting for the First Joint Venture and the Second Joint Venture in accordance with the Deed, which he was provided a copy of;[9]

(c) he understood from the Deed that he was to prepare the 'final statements to effect the financial statement finalisation of each joint venture';[10]

(d) he took what, from his experience, he regarded to be all usual and proper steps to cause what he understood to be a proper and orderly accounting for each of the joint ventures;[11]

(e) this involved preparing financial statements as at 31 December 2020 for each of the First Joint Venture and the Second Joint Venture;[12]

(f) the accounts were prepared on the basis that the joint ventures would not continue to operate beyond that date;[13]

(g) when he prepared the accounts his understanding was that the Deed brought each joint venture to an end;[14] and

(h) he provided the financial statements to Mr Marshall by letter dated 21 January 2021.[15]

1. Mr Figliomeni then goes on to provide the following opinion: [16]

As an accountant it is my understanding that:

14.1 The joint ventures do not file tax returns with the ATO;

14.2 The joint ventures are not tax paying entities;

14.3 The joint ventures are not registered for GST, having been deregistered on 1 July 2013;

14.4 Any income or losses in the joint ventures are accounting entries and accounting treatments of those entries are to the account of the joint venturers who deal with them in their own tax returns. In this case, the final accounts will be dealt with in the joint venturers' individual tax returns for the 2020/2021 year.

By reason of my role as accountant for the two joint ventures, I became aware in about 2013 that in March 2013 the mortgagee of the land the subject of the two joint ventures had gone into possession.

At the time the mortgagee went into possession, the joint venturers had shown GST in their accounts relating to unpaid internal charges between the joint venturers and unsettled sales of land. The internal charges between the joint ventures were reflected in the loan accounts of the joint ventures. For the period the joint ventures were registered for GST, the joint ventures were registered for GST on a cash basis: that is, they pay GST only when they are paid for a taxable transaction.

As a consequence, it is my belief that neither joint venture had GST obligations to discharge.

In the circumstances, I entered the GST as "written off' which is reflected that the entities had been deregistered for GST from 1 July 2013.

1. In his second affidavit, Mr Figliomeni says that he has read the Carrello Affidavit, which I will refer to shortly, and maintains his opinion that he complied with the terms of the Deed. He adds that in preparing the accounts, he also had regard to the terms of the First Joint Venture and the Second Joint Venture. [17] He adds: [18]

While I consider that I discharged my duties to enable the Marshall Parties to comply with clause 2.7(b) of the Deed of Settlement and Release, I say that if Mr Carrello's was correct and all assets needed to be realised, the process would have required the Lyster Parties to pay in sums totalling $2,042,000, which was previously disclosed prior to the final set of accounts as a loan receivable in the accounts of the A Trust and G Trust Joint Venture Accounts (the First Joint Venture). I refer to page 35 of my previous affidavit.

1. Counsel for the Marshall Parties submits that the Marshall Parties have complied with clause 2.7(b) of the Deed. Further, by cl 3.4 of the Deed, the Lyster Parties are barred from bringing proceedings. Clause 2.7(b) was directed to winding up or terminating the joint ventures, not the joint venturers. A joint venture is not a separate legal entity, at law or for accounting or taxation purposes. It is not an incorporated entity like a company. Nor is it a partnership. The principles relating to the liquidation of a companies or winding up of partnerships do not apply. Rather, the relationship between the joint venturers is governed by the terms of the joint venture agreements. This includes how profits and losses will be treated.
2. Accordingly, the Marshall Parties assert that they have a good defence on the merits, the SSC should be struck out with no liberty to replead and that judgment be entered for them.

1. The Lyster Parties invite the court to place weight on an opinion provided by Mr Carrello as to the procedure for winding up an unincorporated joint venture. This is annexed to the Carrello Affidavit.
2. Mr Carrello opines as to his understanding of the technical meaning of words 'wind up' and 'dissolve' in the context of the ending of an unincorporated joint venture.
3. To the extent that Mr Carrello seeks to interpret the phrase 'dissolve and or wind up' in cl 2.7(b) of the Deed, his opinion is inadmissible as this is the ultimate issue for the court.[19] To the extent that Mr Carrello provides evidence, from his experience, as to the practical steps usually undertaken when winding up or dissolving an unincorporated joint venture, his evidence is admissible as to commercial practice in this situation.[20]
4. As to Mr Carello's evidence as to commercial practice, some of this relates to the scenario in the joint venture as an 'entity' in its own right, for example, a partnership. As this is not the present case, I have put this part of his evidence to one side. As to commercial practice relevant to an unincorporated joint venture (UJV) his evidence may be summarised as follows:

(a) to wind up a UJV the first step is to review the various agreements and documentation supporting the business of the realities of UJV;[21]

(b) the documentation in (a) should define the relationships and tasks within the UJV;[22]

(c) the assets the subject of the UJV would need to be identified; [23]

(d) the assets would need to be valued, a strategy developed for sale and the assets sold;[24]

(e) an insolvency practitioner would 'need to go beyond the UJV agreement and determine if there are claims between the parties that require resolution, which may be undocumented;[25]

(f) an insolvency practitioner would seek to identify assets which are not necessarily documented, but are nonetheless subject of the UJV;[26]

(g) once all UJV assets have been realised, the next assessment is distribution of funds;[27] and

(h) the process in (g) would begin with secured debts, the creditors, if necessary, on a pari-pasu basis.[28]

1. The position of the Lyster Parties is that the Marshall Parties have failed to perform cl 2.7(b) of the Deed which caused them loss.
2. The Lyster Parties accept that the Marshall Parties 'instructed their accountant to wind up the joint ventures [but in] response, he prepared financial statements, but took no further actions'.[29]
3. Counsel assets that an issue at trial would be the meaning of the phrase 'dissolve and or wind up' in cl 2.7(b) of the Deed. The Lyster Parties plead that:[30]

It was an express term of the contract pleaded in the preceding paragraph, properly construed, in effect, that on or before 7 January 2021, the defendants would, at their cost, dissolve or cause to be dissolved the first joint venture and second joint venture, including by applying the property of each joint venture to the debts and liabilities of that joint venture (cl 2.7(b)).

1. The position of the Lyster Parties is that what is required to 'dissolve and or wind up' the First Joint Venture and the Second Joint Venture must be drawn from the deeds pursuant to which they were established. In written submissions, counsel drew the attention of the court to the supplemental deed dated 13 March 2007 (2007 Deed). The 2007 Deed has extensive recitals setting out the prior dealings between the parties. Counsel drew the court's attention to cl 1.1(c)(viii) and cl 1.2(c)(vii) which govern the distribution of proceeds from developing and selling joint venture property. Clause 1.1(c)(viii) provides:[31]

The proceeds of sale from the development and sale of the Lakes Road Property and each subdivisional lot created from development of that property is to be applied:

1. in first paying (or crediting in the First Joint Ventures' accounts for later payment) a proportion of all the "Costs" of the First Joint Venture Agreement; and
2. secondly in profit distribution payments (or crediting in the First Joint Ventures' accounts for later profit distribution payments) of the balance equally to Lyster and Landbank;

1. at the time of registration under the Transfer of Land Act of the plan of subdivision of lot 21, 22 and 23, a lot of approximately 4.9331 hectares (being and amalgamation of proposed lots 541 and 542 in the present concept subdivisional plan) is to be created in relation to that part of the land upon which the present homestead presently stands (in this clause referred to as "the Lyster Lot"), which are to remain registered in the name of Lyster (for Lyster's own use and benefit but Lyster HEREBY COVENANTING with Landbank that, unless otherwise agreed in writing by AJM, neither of the Lyster Lot are to be sold, offered for sale nor be the subject of any agreement for sale by Lyster until all other lots created from the subdivision of those lots 21, 22, and 23 have been sold); and
2. Landbank shall thereafter be entitled to payment of an amount of profit of the First Joint venture, arising from the then or subsequent sales of other lots created from subdivision of the Lakes Road Property, in an amount equal to the market value of the Lyster Lot at the date of that payment to Landbank (calculated upon the basis that the Lyster Loan and hence the acquisition cost of lots 21, 22, 23 24 and 26 have been repaid in full) in priority to any other payment of distribution of First Joint Venture profits to Landbank or Lyster.;

The proceeds of sale from the development and sale of Lot 25 and each subdivisional lot created from development of that property is to be applied:

1. in first paying (or crediting in the Second Joint Ventures' accounts for later payment) a proportion of all the "Costs" of the Second Joint Venture; and
2. secondly in profit distribution payments (or crediting in the Second Joint Ventures' accounts for later profit distribution payments) of the balance equally to the A Trust and the G Trust.

1. For present purposes, I don't need to refer to the specific defined terms in the clauses quoted in the preceding paragraphs in more detailed terms.
2. As the argument about the bar in cl 3.4, the release is subject to compliance with the terms of the Deed. If the Marshall Parties have complied with cl 2.7(b) they could rely on the bar, but would not need to. If they have not complied, they cannot rely on the bar.

(a) what is required to 'dissolve and or wind up' the First Joint Venture and the Second Joint Venture must be drawn from the terms of the deeds by which they were created, including any amendments; and

(b) merely providing financial accounts is not sufficient given cl 1.1(c)(viii) and cl 1.2(c)(vii) of the 2007 Deed.

1. As I have mentioned, the power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. This is not one of those cases. The Marshall Parties have not satisfied the onus upon them to persuade the court that is no real question to be tried on any cause of action raised by the Lyster Parties or that they have a good defence on the merits, or that the action should otherwise be disposed of summarily.

1. The Marshall Parties should have leave to commence the Application out of time. The catalyst for bringing the Application was the filing of the SSC on 21 November 2024. However, the Application in so far as it relates to summary judgment should be dismissed.
2. The alternative to summary judgment was an application to strike out parts of the SSC. As I discussed with the parties on 15 April 2025, there is merit in this aspect of the Application.
3. In order for the Marshall Parties to know the case they have to meet, the SSC must specifically identify:

(a) what steps the deeds creating and governing the First Joint Venture and the Second Joint Venture required the Marshall Parties to take in order to wind up or dissolve the joint ventures;

(b) how they say the Marshall Parties failed to comply with the steps in (a); and

(c) how they say the failure in (b) caused them the financial loss they claim in the action.[33]

1. Accordingly, I ordered that by 13 May 2025, the plaintiffs file and serve a minute of proposed amended substituted statement of claim.
2. As mentioned, the action was admitted to my CMC List and relisted before me on 26 May 2025 at 3:15 pm at which time I will hear any further arguments on any minute of proposed amended substituted statement of claim.

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 16 r 1(1).

[3] Pisano v South Metropolitan Health Service [2023] WASCA 80 [52] (Judgment of the court) (references omitted) (Pisano).

[5] Marshall Affidavit, par 9, pages 131 - 145.

[6] The more specific definitions of the lots set out in the Deed are not relevant for present purposes.

[8] Figliomeni First Affidavit, pars 5 and 6.

[10] Figliomeni First Affidavit, par 8.

[11] Figliomeni First Affidavit, par 9.

[12] Figliomeni First Affidavit, par 10.

[13] Figliomeni First Affidavit, par 11.

[14] Figliomeni First Affidavit, par 12.

[15] Figliomeni First Affidavit, par 13.

[16] Figliomeni First Affidavit, pars 14 - 18.

[17] Figliomeni Second Affidavit, pars 3 - 8.

[18] Figliomeni Second Affidavit, par 9.

[19] R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129, 130 - 131 (Giles J) (Miller); Dodd v Tamigi [2008] WASCA 21 [16] (Beech AJA, with whom Steytler P and Miller JA agreed).

[31] Carrello Affidavit, pages 55 - 56.

[33] As to which, see generally: Di Ciano v Australia and New Zealand Banking Group Ltd [No 2] [2025] WASC 80 [7] - [9], [48] - [49] (Gething J).