(a) $24,352.90 relating to item 3(b) for the defence. The 2016 and 2018 Determinations allow a maximum of 10 hours for a senior practitioner. This results in a maximum amount allowable on taxation of $4,840 pursuant to the 2016 Determination or a maximum amount of $4,950 pursuant to the 2018 Determination.

(b) $23,945.90 relating to item 7(b) for giving discovery of documents. The 2016 and 2018 Determinations allow a maximum of 10 hours for a senior practitioner. This results in a maximum amount allowable on taxation of $4,840 pursuant to the 2016 Determination or $4,950 pursuant to the 2018 determination.

(c) $276,824.90 relating to item 17 (2016 Determination) and item 18 (2018 Determination) for preparation of the case. The 2016 and 2018 Determinations allow a maximum of 120 hours for a senior practitioner, which results in a maximum allowable amount on taxation of $58,080 pursuant to the 2016 Determination or $59,400 pursuant to the 2018 Determination. Preparation of case for trial (includes work reasonably and necessarily undertaken prior to the commencement of proceedings).

1. In his affidavit, Mr Ferreira sets out the extent of work performed by his firm as follows:[365]

(a) the statement of claim was amended four times, the defence and counterclaim were amended five times and the reply and defence to the counterclaim were amended six times during the course of the action. Due to the complexity of the issues all amendments of the defence and counterclaim were settled by counsel, who became senior counsel in 2018;

(b) the defence and counterclaim had to deal with all the difficult and complex issues raised by the plaintiffs and in itself raised difficult and complex issues concerning whether the managed investment scheme had to be registered, whether the terms of the Giorgi Trust deed prohibited variation of the terms of the contract agreed to by Giorgi and ARF on January 2009, and the effect of Mr McRobert's consent or acquiescence to the breach of trust;

(c) the Cranston and Giorgi Trust parties discovered 284 documents in a discovery affidavit and in a further four informal discovery lists (contained in three arch lever files);

(d) the Cranston and Giorgi Trust parties' lawyers had to consider the following documents to be able to prepare the discovery affidavit and lists, in respect of which, once considered, the relevant documents were discovered:

(i) all the documents provided to them by the defendants concerning the matter (initially consisting of three lever arch files), excluding the documents referred to in the following subparagraphs;

(ii) an office file of documents requested to be and provided by the settlement agent who attended to the transfer of Lot 2009 Giorgi Road (Norm Hart Settlements);

(iii) three large office files of documents from Allion Partners Lawyers (previously Pullinger Readhead Lucas) that acted for Giorgi and the Giorgi Trust;

(iv) documents that related to other developments, such as the Caves Road, Tuart Brook and Hayward Street developments referred to by the plaintiffs in [64] of the statement of claim;

(v) subpoenaed documents from the National Australia Bank;

(vi) documents received from Jarrad Cranston, Tony Arias and Evan Cranston, witnesses for the Cranston and Giorgi Trust parties; and

(vii) documents from Michael Copeland, a valuer who valued Lot 2009 Giorgi Road, and from the Shire of Dardanup;

(e) the difficult and complex issues of fact and law caused the Cranston and Giorgi Trust parties' lawyers to have to do a lot more work than usual to prepare the case which was that:

(i) the complicated pleadings filed by the plaintiffs had to be considered in preparation for the trial;

(ii) the plaintiffs requested further and better particulars to the defence on more than one occasion. Those requests had to be considered and answered, again taking into account the many difficult and complex issues in the matter;

(iii) a lot of time had to be spent to consider the witness statements filed by the plaintiffs and the plaintiffs' evidence concerning all of the issues and how that would impact on the Cranston and Giorgi Trust parties' preparation and strategy for the trial;

(iv) the large number of documents discovered by the plaintiffs had to be considered with regard to their impact and importance relating to the many difficult and complex issues in the matter;

(v) the discovered documents had to be considered again to decide which of the documents should be tendered at the trial and to which documents tendered by the plaintiffs the Cranston and Giorgi Trust parties should object to. The many difficult and complex issues in the matter caused this process to take longer than normal;

(vi) it took a significant amount of time to consider and agree upon a list of issues and agreed facts. The process to attempt to agree on a chronology was similar;

(vii) as a result of the difficulty, complexity and importance of the matter senior counsel was engaged on the Cranston and Giorgi Trust parties' behalf. A number of briefs were prepared for senior counsel to settle the amendments to the defence, the witness statements, the objections to the witnesses' evidence, the list of documents to be tendered and to be objected to and to conduct the trial. The briefs would have been less, simpler and not as voluminous if it was not for the difficulty and complexity of the matter; and

(viii) the eventual preparation for the trial took a substantial amount of time. The evidence, cross‑examination and submissions had to be considered and prepared taking into account all the difficult and complex issues that were in dispute. The Cranston and Giorgi Trust parties' solicitors and counsel met with all the witnesses in preparation for the trial and considered all the documents in the trial book. Opening submissions were prepared for counsel to settle and the opening submissions for the plaintiffs were considered.

1. The plaintiffs claim that the Cranston and Giorgi Trust parties have not established that the maximum amounts allowable under the 2016 and 2018 Determinations are inadequate as they have not established that there is a fairly arguable case that the bill of costs to be presented to the taxing officer may properly tax at an amount which is greater than the limits which would be imposed by the relevant costs determination in that:[366]

(a) the Cranston and Giorgi Trust parties obviously contend that the unspecified portions of the draft bill of costs which relate to the four amendments made to the defence are all allowable on taxation. The draft bill of costs does not state how much of the Cranston and Giorgi Trust parties' costs relate to each of the five iterations of the defence, filed on: 19 December 2016, 19 April 2017, 1 March 2018, 30 November 2018, and 8 January 2019. However, by reason of O 66 r 3(1) of the Rules of the Supreme Court 1971 (WA) the costs of amendments to a pleading made without leave is to be borne by the party making the amendment, unless the court otherwise orders;

(b) there is a fairly arguable case that the Cranston and Giorgi Trust parties' costs would not properly tax at an amount greater than $4,840 and far less than the $24,352.90 claimed. This is evident by:

(i) the coloured and marked-up versions of the second further re-amended defence, filed 8 January 2019, was 22 pages in length;

(ii) the few amendments made to the statement of claim as initially pleaded were minor;

(iii) of the 88 paragraphs that ultimately comprised the statement of claim, the Cranston and Giorgi Trust parties either admitted (or were not required to substantively respond to) 38 of those paragraphs in their initial defence, a further three paragraphs in the second iteration of their defence, and a further six paragraphs in their fourth iteration of its defence; and

(iv) very little of substance was pleaded by the Cranston and Giorgi Trust parties in their initial defence or in response to amendments of the statement of claim. Hence, all substantial amendments to the defence were added by amendments to the defence not responding to the initial statement of claim or amendments to the statement of claim, which the Cranston and Giorgi Trust parties are precluded from recovering under O 66 r 3(1);

(c) the draft bill does not state how much of the discovery costs relates to the original discovery provided by the Cranston and Giorgi Trust parties or their subsequent informal discovery;

(d) it is not clear whether the documents referred to in [18(b)], [18(c)], [18(f)] and [18(g)] of Mr Ferreira's affidavit, sworn 5 November 2019, comprise documents that were in the Cranston and Giorgi Trust parties' possession, custody or control as opposed to documents obtained by them as part of preparing their case. The documents referred to in [18(e)] (subpoenaed from the National Australia Bank) do not appear to fall within the contended costs category;

(e) it is not fairly arguable that discovery costs would be taxed at over $4,840 for work done to discover what were ultimately no more than 284 documents. Discovery of 284 documents is smaller than discovery in most civil actions in the court; and

(f) the draft bill of costs does not state how much of the preparation costs relate to each sub-item of costs that the Cranston and Giorgi Trust parties contend comprise the costs falling within items 17 and 18 of the 2016 and 2018 Determinations respectively, when those sub-items comprise:

(i) consideration of pleadings, and consideration and answering of further and better particulars is work that comes within categories of the 2016 and 2018 Determinations other than case preparation and they are not components of case preparation; and

(ii) uncomplicated, routine tasks of consideration of documents discovered by the plaintiffs, documents produced pursuant to subpoenas, preparation of witness statements and consideration of witness statements filed on behalf of the plaintiffs, and objections thereto, preparation of trial books, trial bundle and other documents for the purpose of trial, and briefing counsel.

Accordingly, it is both impossible to identify the amount properly claimed as preparation costs in the draft bill of costs, or to identify any work done to establish a fairly arguable case.

1. In this matter, the function of the court in making a special costs order under s 280(2) of the Legal Profession Act is not to determine the quantum of costs. The quantum of costs to be allowed is to be determined by taxation.
2. If a special costs order is made, that event merely allows a taxing officer to consider the potential for an end costs allowance outcome upon the taxation which may ultimately exceed the quantum of any particular scale limit.[367] It always remains entirely within the taxing officer's discretion whether or not to allow an amount claimed as a reasonable allowance for the work carried out.[368]
3. I am satisfied that the Cranston and Giorgi Trust parties have applied significantly more resources for the steps necessary to be taken in preparation of the defence, discovery and preparation of their case than those contemplated under items 3(b) and 7(b) of the 2016 Determination and 2018 Determination, and items 17 and 18 of the 2016 Determination and 2018 Determination, respectively. This is in part because of the serious allegations which were made against the Cranston and Giorgi Trust parties. There were significant issues at stake for these parties.
4. I am satisfied that the amount of costs allowable for getting up in the relevant costs Determinations are inadequate, in the sense that there is a fairly arguable case that Cranston and Giorgi Trust parties' bill of costs in respect of this item may properly be taxed at more than the scale allows.
5. Taking into account the court's impression of the case and the evidence, I am satisfied that significant work was required in the preparation of the defence, discovery and preparation of the case because:

(a) (leaving aside the issues raised in respect of amendments to the pleadings) whilst the defence and counterclaim, in itself, did not plead a complicated defence, that did not obviate the necessity of the Cranston and Giorgi Trust parties' solicitors and counsel from having to spend a considerable amount of work addressing the plaintiffs' long and complicated statement of claim;

(b) although the number of documents discovered by the Cranston and Giorgi Trust parties was only 284, the number of hours performed by their practitioners to locate and discover that number of documents exceeded the maximum number of allowable hours of 10 by 87.5 hours. Having heard all of the evidence, it is apparent that the searches encompassed a number of the various different factual and legal issues raised in the plaintiffs' action;

(c) the number of hours of work performed by practitioners by the Cranston and Giorgi Trust parties' solicitors vastly exceeded the limits under item 17 (of 120 hours) by 638.2 hours; and

(d) the application of the resources referred to in (a), (b) and (c) arises from the importance of the matters and the complexity of the issues raised in the plaintiffs' case.

1. It is immaterial whether some of the getting up work performed was uncomplicated or routine in nature.
2. In my view, it is not necessary to deal in detail with the other points made in the plaintiffs' submissions as to whether particular work should be excluded from the items for the following reasons:

(a) whether the work falls within the items claimed are matters appropriately dealt with by the taxing officer;

(b) plainly, amendments to the defence may be work that would be properly excluded by the taxing officer because of the operative effect of O 66 r 3 (1) of the Rules of the Supreme Court (if the amendments were not merely responsive to the plaintiffs' amendments to the statement of claim);

(c) it is for the taxing officer to consider the necessity for the work that was done;[369] and

(d) whether the quantum of costs claimed for particular work, or for each item, should be allowed is a matter for the taxing officer.

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

[1] Plaintiffs' further re‑amended statement of claim, filed 22 June 2018 [7] ‑ [8]; not admitted by [7] and [8] of the defendants' second further re‑amended defence and counterclaim, filed 8 January 2019.

[2] Plaintiffs' further re-amended statement of claim, filed 22 June 2018, 27 ‑ 29.

[3] Plaintiffs' further re-amended statement of claim, filed 22 June 2018 [76].

[4] Plaintiffs' further re-amended statement of claim, filed 22 June 2018 [80] ‑ [82].

[5] Plaintiffs' further re-amended statement of claim, filed 22 June 2018 [80] ‑ [82].

[6] In these reasons, including in the footnotes, where the term defendants is used, it is intended to refer only to Mr John Cranston, Kingslane and Giorgi.

[7] Kingslane is sued as second defendant in its capacity as trustee of the JW Cranston Family Trust and as the fourth defendant in its capacity as trustee of the Cranston Superannuation Fund.

[8] MPD, Redmont Resources and Mr Morris entered an appearance in the action. By order of Principal Registrar Strk on 24 October 2016 and 8 November 2016, MPD, Redmont Resources and Mr Morris were granted leave not to participate in the proceedings, attend any further hearings or file any further documents in the action. On 4 May 2018, Principal Registrar Strk made an order that Gillian Ann Morris in her capacity as executor of the estate of Mr Morris be made a party to the proceedings.

[16] Exhibit 5, annotated substituted witness statement of John Windsor Cranston, filed 12 February 2019 [101].

[17] Exhibit 1, annotated witness statement Andrew John McRobert, filed 12 February 2019 [42].

[18] ts 113, 14 February 2019; exhibit A, tab 34, 193.

[19] ts 114 ‑ 115, 14 February 2019; exhibit A, tab 35, 195.

[29] Exhibit A, tab 48, tab 49, tab 50, 393 ‑ 394.

[32] Exhibit A, tab 60, 431, tab 63, 436.

[37] Mr Arias paid this amount on 24 April 2009; Mr McRobert paid this amount on 14 April 2009; exhibit A, tab 87, 573, tab 92, 593, tab 204, 1489.

[39] Exhibit A, tab 75, 484, tab 76, 487 ‑ 490.

[40] Exhibit A, tab 76, 488. There is a dispute about who suggested this figure. Mr John Cranston suggests it was Mr McRobert; ts 279, 18 February 2019. Mr McRobert's evidence was vague on this point. He does not recall inserting that figure but agrees signing the form. He does, however, agree that the price paid for the land that is lot 2009 was reasonable; ts 120, 14 February 2019.

[41] Exhibit A, tab 82, 523, 524, 551 ‑ 552.

[48] A copy of the schedule in this form, that appears to be part of a copy of the Giorgi Trust Deed that also contains the signatures of Mr John Cranston, Mr Barry, Mr Arias, and Mr and Mrs McRobert, was provided to Mr McRobert's accountant at some time prior to 12 June 2013: exhibit A, tab 519, 3244 ‑ 3292.

[49] ts 381, 19 February 2019. Mr John Cranston and Ms Jackson are partners in a tax depreciation business (assessment for taxation) which is run solely by Ms Jackson.

[50] Exhibit 5, annotated substituted witness statement of John Windsor Cranston, filed 14 February 2019 [78] ‑ [80]; ts 382, 19 February 2019.

[63] Exhibit 5, annotated substituted witness statement John Windsor Cranston, filed 14 February 2019 [140] ‑ [142].

[72] ts 141, 146 ‑ 149, 14 February 2019; exhibit 1, annotated witness statement Andrew John McRobert, filed 12 February 2019 [80].

[74] Exhibit 1, annotated witness statement Andrew John McRobert, filed 14 February 2019 [76].

[75] Exhibit A, tab 115, 876 ‑ 914; ts 202 ‑ 203, 15 February 2019; at ts 340, 15 February 2019, counsel for the plaintiff put to Mr John Cranston that a copy of the draft lease in the form of exhibit A, tab 115 was the document Mr John Cranston showed Mr McRobert on 18 or 19 June 2009. It is to be noted that the draft proposed the lessee as ARF Picton Pty Ltd (a subsidiary of ARF) and ARF as guarantor; at ts 149, 14 February 2019, when cross‑examined, Mr McRobert said he saw the draft lease before he spoke to Mr John Cranston for the last time about his concerns about the development to 'wash its own face'.

[81] Exhibit A, tab 148, 1277 ‑ 1323; see specifically, 1278.

[87] Exhibit A, tab 175, 1441 ‑ 1442; tab 179, 1446; tab 197, 1479 ‑ 1481.

[94] Exhibit A, tab 739, 4362: Valuation Report lot 2009 prepared for NAB issued 31 July 2009.

[97] Mr Copeland noted that the proposed sale price of the 2.6 ha site comprising the bio-diesel refinery rate of $33 per sqm of land area, which appeared low in the circumstances, was, however, reflective of the sale and lease back nature of the transaction.

[100] Exhibit A, tab 157, 1403 ‑ 1405.

[106] Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2.

[107] Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 136.

[108] Exhibit 3, annotated witness statement Christopher William Weaver, filed 13 February 2019 [23], [40].

[109] Exhibit 3, annotated witness statement Christopher William Weaver, filed 13 February 2019 [46]; exhibit A, tab 225, 1550 ‑ 1551.

[111] ts 306, 18 February 2019; exhibit A, tab 185, 1483.

[119] TME were acting for LandCorp (lot 2010).

[121] Exhibit A, tab 213, 1521; ts 161, 14 February 2019.

[125] See exhibit A, tab 234, 1572 ‑ 1573.

[127] Exhibit A, tab 171, 1434 ‑ 1435; a copy of these schedules was provided to Mr McRobert sometime before 16 February 2016 when Mr McRobert sent copies of the schedules and a copy of the Trust Deed to Mr Weaver; exhibit A, tab 639, 3678.

[128] Exhibit 1, annotated witness statement Andrew John McRobert, filed 14 February 2019 [102] ‑ [103].

[131] Exhibit A, tab 362, 2097 ‑ 2106, tab 373, 2180 ‑ 2184; exhibit 3, annotated witness statement of Christopher William Weaver, filed 13 February 2019 [81].

[134] If it is accepted that 29 January 2009 is the date of the Giorgi Trust Deed. I deal with this issue in pt 8.0.

[136] Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226 [37] (Brennan CJ, Toohey, Gaudron, McHugh & Gummow JJ); applying DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510, 519 (Hope JA).

[137] It is accepted that Mrs McRobert is bound by the acts of Mr McRobert.

[138] Evans v Braddock [2015] NSWSC 249 [74] (Hallen J); Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 [1247] (Jagot J).

[139] Fazio v Fazio [2010] WASC 263 [51].

[140] See, for example, exhibit A, tab 70, 462.

[141] Exhibit 2, annotated responsive witness statement of Andrew John McRobert, filed 12 February 2019 [7] ‑ [9].

[145] Exhibit A, tab 35, 195; ts 114 - 115, 14 February 2019.

[146] ts 109 ‑ 110, 14 February 2019; exhibit A, tab 25, 173.

[149] Exhibit 3, annotated witness statement of Christopher William Weaver, filed 13 February 2019 [26]; exhibit A, tab 639, 3673.

[150] Exhibit 3, annotated witness statement of Christopher William Weaver, filed 13 February 2019.

[151] ts 427, 19 February 2019; exhibit 10, annotated witness statement of Jarrad Richard Cranston, filed 1 December 2017 [28].

[152] Exhibit A, tab 385, 2211 ‑ 2216.

[154] Exhibit A, tab 88, 579; see also, ts 345, 18 February 2019.

[155] Exhibit 12, annotated witness statement of John Anthony Arias, filed 1 December 2017 [50].

[158] ts 292, 297, 344, 18 February 2019.

[159] ts 292, 297, 344, 18 February 2019.

[160] ts 344, 18 February 2019; exhibit A, tab 43, 353; the offer and acceptance form was executed by the Chairman of ARF on the following day.

[162] ts 401, 19 February 2019; see exhibit A, tab 39, 291, tab 40, 340.

[163] See, exhibit A, tab 39, 289 ‑ 291, tab 40, 336 ‑ 337, 340.

[167] Exhibit A, tab 8, 115, 121, 133.

[168] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[169] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [64] (Heydon, Crennan & Bell JJ); Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 [232] (Heydon J).

[171] See Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86, 97 (Dixon CJ, Williams & Fullagar JJ).

[172] Ms Jackson and Mr and Mrs Mason.

[173] Plaintiffs' notes for closing submissions, filed 11 July 2019 [100] ‑ [101].

[174] Exhibit 1, annotated witness statement of Andrew John McRobert, filed 12 February 2019 [71].

[175] Exhibit A, tab 28, 178, tab 73, 475.

[177] See [123] to [127] of these reasons.

[178] Referred to by Mr Engelsman as 'Lakeside'.

[179] Referred to by Mr Engelsman as 'Lakeside'.

[180] Exhibit 1, annotated witness statement of Andrew John McRobert, filed 12 February 2019 [80].

[181] Exhibit 1, annotated witness statement of Andrew John McRobert, filed 12 February 2019 [80].

[182] Exhibit 2, annotated substituted responsive witness statement of Andrew John McRobert, filed 12 February 2019 [29].

[193] Exhibit 12, annotated witness statement of John Anthony Arias, filed 1 December 2017 [95] ‑ [96].

[203] Defendants' second further re‑amended defence and counterclaim, filed 8 January 2019 [36].

[204] ts 254, 15 February 2019, counsel for the defendants acknowledges that if the court finds that Mr McRobert did not consent or acquiesce then there will have been a breach of trust, although not in every sense that the plaintiffs suggest.

[205] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [75] (Gummow & Hayne JJ); Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666, 669 (Handley JA), 673 (Hope AJA); Re Pauling's Settlement Trusts; Younghusband v Coutts & Co [1961] 3 All ER 713, 730 (Lord Wilberforce).

[206] Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666, 675 (Hope AJA).

[207] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [27] (French CJ) Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37; (1945) 72 CLR 319, 326 (Latham CJ).

[208] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [79] (Gummow & Hayne JJ); applying Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 337 ‑ 338 (Deane J).

[209] Cotton v Dempster [1918] WALawRp 1; (1918) 20 WALR 14, 17 (Booth J), 19 (Northmore J); Swan v Perpetual Executors and Trustees Association of Australia Ltd [1898] VicLawRp 56; (1897) 23 VLR 293, 309 (Holroyd J); cited with approval in Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666, 670 (Handley JA); see also, Halsbury's Laws of Australia, 'Acquiescence in past breach of trust' [430-5515].

[210] Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 337 ‑ 338.

[211] Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 337 ‑ 338 (Deane J). See also, the observations of Heydon J & Crennan J in Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, 293.

[212] Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666, 670; cited with approval in Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [25] (French CJ), [77] (Gummow & Hayne JJ).

[213] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [25] (French CJ).

[214] Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37; (1945) 72 CLR 319, 326 (Latham CJ); applying De Bussche v Alt (1878) 8 Ch D 286, 314; see also, Swan v Perpetual Executors and Trustees Association of Australia Ltd [1898] VicLawRp 56; (1897) 23 VLR 293, 309 (Holroyd J).

[215] Exhibit A, tab 148, 1281: cl 2.1 of the transfer deed.

[216] Plaintiffs' notes for closing submissions, filed 29 July 2019 [74]; see ts 567, 21 February 2019.

[217] Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310 [115].

[218] Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183 [46] (Newnes JA, Murphy JA & Edelman J agreeing).

[219] Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 [160].

[220] Exhibit A, tab 39, 260 ‑ 261: cl 6.14 of the Giorgi Trust Deed.

[221] Exhibit A, tab 39, 256; exhibit 8, cl 4.4.2.

[224] Exhibit A, tab 175, 1441; the payment by ARF to Kingslane was offset against the payment Kingslane was required to make to Giorgi (the Initial Lot Contribution) and the payment Giorgi would otherwise be required to make to ARF for the purchase of the land that was to become lot 26 was deducted from the purchase price.

[226] Exhibit A, tab 148, 1281; Kingslane had not paid any amount as an initial lot contribution for proposed lot 26. However, no point about this issue is raised by the plaintiffs in their pleaded case.

[229] Second further re-amended defence and counterclaim, filed 8 January 2019 [76].

[230] Further re‑amended statement of claim, filed 22 June 2018 [76]; see also, plaintiffs' outline of opening trial submissions, filed 29 January 2019 [41].

[231] Plaintiffs' outline of opening trial submissions, filed 29 January 2019 [41].

[232] Exhibit A, tab 102, 793 ‑ 794; tab 111, 865 ‑ 870.

[233] For reasons that follow, the Giorgi Trust terminated on 29 July 2013.

[234] Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232 [30] ‑ [31].

[235] Love v Brien [2012] WASC 457 [48] ‑ [49]; approved by the Court of Appeal in Love v Brien [2013] WASCA 280 [16] ‑ [24] (Murphy JA; Buss & Newnes JJA agreeing).

[236] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [95].

[237] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [206].

[238] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [204].

[239] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [287].

[240] See Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [292] ‑ [295], [297].

[241] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [294].

[242] National Trustees Executors & Agency Co of Australasia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268, 277 (Williams J).

[243] Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653, 656 (Meagher JA).

[244] The absence of ARF as a party to the proceedings is irrelevant because ARF consented to the lease containing the peppercorn rent.

[245] Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 [56] (Gleeson CJ, Gummow & Hayne JJ), [163] (Callinan J); TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 [54] (Leeming JA); applying Hayim v Citibank NA [1987] AC 730, 748 (Lord Templeman).

[246] Lidden v Composite Buyers Ltd (1996) 139 ALR 549, 553.

[247] Plaintiffs' outline of opening trial submissions, filed 29 January 2019 [5].

[248] Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 [55] (Gleeson CJ, Gummow & Hayne JJ).

[249] Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 [55] (Gleeson CJ, Gummow & Hayne JJ).

[250] Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 [55] (Gleeson CJ, Gummow & Hayne JJ).

[251] Plaintiffs' further re-amended statement of claim, filed on 22 June 2018 [63] ‑ [66]; plaintiff's outline of opening trial submissions, filed 29 January 2019 [54].

[252] The s 601ED(3) determination is a determination whereby ASIC determines that a number of schemes are closely related and such that they are assessed as one scheme for the purpose of the number of members where that number exceeds 20. In the event that the collective number of members exceeds 20, each scheme is required to be registered.

[253] Corporations Act 2001 (Cth) s 601ED(1).

[254] Corporations Act 2001 (Cth) s 601ND(1)(a).

[255] Corporations Act 2001 (Cth) s 601EE(2).

[256] Plaintiffs' outline of opening trial submissions, filed 29 January 2019 [54].

[257] Defendants' outline of submissions, filed 11 February 2019 [58].

[258] Defendants' outline of submissions, filed 11 February 2019 [59].

[259] Plaintiffs' further re-amended statement of claim, filed 22 June 2018 [67].

[260] Defendants' second further re-amended defence and counterclaim, filed 8 January 2019 [67].

[261] ts 578, 21 February 2019; where the Giorgi Trust was not promoted by Mr Cranston, was promoted by his associate (Mr McRobert) ‑ this point does not appear to be in dispute between the parties.

[262] Whaley Bridge Calico Printing Co v Green (1879) 5 QBD 109, 111 (Bowen J).

[263] Tracy v Mandalay Pty Ltd [1953] HCA 9; (1953) 88 CLR 215, 241 (Dixon CJ, Williams & Taylor JJ); applying Emma Silver Mining Co Ltd v Lewis & Son (1879) 4 CPD 396.

[264] Tracy v Mandalay Pty Ltd [1953] HCA 9; (1953) 88 CLR 215, 241 (Dixon CJ, Williams & Taylor JJ); see also, Australian Securities and Investments Commission v Young [2003] QSC 29; (2003) 173 FLR 441 [50] ‑ [51] (Muir J); see also, Australian Securities Commission v Woods & Johnson Developments Pty Ltd (1991) 6 ACSR 191, 194 (Pincus J).

[265] The onus here rests with the plaintiffs as the party seeking to assert that Mr Cranston was in the business of promoting managed investment schemes, there is no basis for deviating from this general rule.

[266] Exhibit 12, annotated witness statement of John Anthony Arias, filed 1 December 2017 [13].

[268] Exhibit 5, annotated substituted witness statement of John Windsor Cranston, filed 12 February 2019 [45] ‑ [47].

[272] Australian Securities and Investment Commission v Young (2003) QSC 29; (2003) 173 FLR 441 [53].

[273] Corporations Act 2001 (Cth) s 601ED(2).

[274] Corporations Act 2001 (Cth) s 501ZE(2).

[275] Corporations Regulations (Cth) reg 7.9.16.A.

[276] Corporations Act 2001 (Cth) s 1012E(7)(a).

[277] Corporations Act 2001 (Cth) s 1012E(7)(b).

[278] Corporations Act 2001 (Cth) s 1012E(8)(a).

[279] Willmott Forests Ltd (in liq) and Willmott Finance Pty Ltd (in liq) (2011) 85 ACSR 71 [5] (Davies J).

[280] Corporations Act 2001 (Cth) s 761G(7)(a); Corporations Regulations 2001 (Cth) reg 7.1.18(2).

[281] Corporations Act 2001 (Cth) s 761G(4).

[282] Defendants' outline of submissions, filed 11 February 2019 [73].

[285] The total value of the agreement is $3,300,000. The Wholesale investors make up a proportion of that amount equal to $2,258,000.

[286] Nor is the 20 member ceiling breached.

[287] Plaintiffs' outline of opening trial submissions, filed 29 January 2019 [78].

[288] Plaintiffs' outline of opening trial submissions, filed 29 January 2019 [78].

[289] Defendants' outline of submissions, filed 11 February 2019 [75].

[290] Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167.

[291] Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167 [24] ‑ [30].

[292] Plaintiffs' submissions in response to defendants' outline of opening submissions, filed 12 February 2019 [12] ‑ [14].

[293] Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; (2017) 251 FCR 448.

[294] Plaintiffs' submissions in response to defendants' outline of opening submissions, filed 12 February 2019 [12] ‑ [13] citing Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; (2017) 251 FCR 448 [5]; both the plaintiffs and the defendants rely upon case law that considers the analogous provisions of s 708 and s 727 of the Corporations Act 2001 (Cth), where 'personal offer' is defined in the same terms as in s 1012E(b).

[295] Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; (2017) 251 FCR 448 [36] (Allsop CJ, Middleton & Bromwich JJ).

[296] Heydon J D, Cross on Evidence (11th ed) [7060] citing Dickinson v Minister for Pensions [1953] 1 QB 228, 232 (Ormerod J).

[297] Currie v Dempsey (1967) 69 SR (NSW) 116, 125.

[298] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 257 (Dawson, Toohey & Gaudron JJ); see also Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, 519 ‑ 520.

[299] Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, 519 ‑ 520 (Dixon CJ, McTiernan, Webb, Fullagar & Kitto JJ); applying Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163; Pye v Metropolitan Coal Co Ltd [1934] HCA 9; (1934) 50 CLR 614; Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635; Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136.

[300] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 257 (Dawson, Toohey & Gaudron JJ).

[301] Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635, 644 (Dixon J).

[302] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 258 ‑ 259 (Dawson, Toohey & Gaudron JJ).

[303] Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc [2009] QSC 058; (2009) 224 FLR 50.

[304] Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc [2009] QSC 058; (2009) 224 FLR 50 [40].

[305] Australian Securities and Investments Commission v Great Northern Developments Pty Ltd [2010] NSWSC 1087; (2010) 242 FLR 444 [44].

[306] ts 519 ‑ 521, 21 February 2019; defendants' outline of submissions, filed 11 February 2019 [75].

[307] Exhibit 3, annotated witness statement of Christopher William Weaver, filed 13 February 2019 [24].

[308] Exhibit 3, annotated witness statement of Christopher William Weaver, filed 13 February 2019 [29].

[309] Exhibit 3, annotated witness statement of Christopher William Weaver, filed 13 February 2019 [44].

[310] Exhibit 5, annotated substituted witness statement of John Windsor Cranston, filed 12 February 2019 [78] ‑ [79].

[313] ts 521, 21 February 2019; exhibit 5, annotated substituted witness statement of John Windsor Cranston, filed 12 February 2019 [81].

[314] Exhibit 5, annotated substituted witness statement of John Windsor Cranston, filed 12 February 2012 [82].

[315] Exhibit 11, annotated witness statement of Stuart John Cuthbert, filed 12 February 2019 [5].

[316] Exhibit 11, annotated witness statement of Stuart John Cuthbert, filed 12 February 2019 [15].

[318] Defendants' second further re-amended defence and counterclaim, filed 8 January 2019 [57].

[325] Clause 6.10 of the Giorgi Trust Deed.

[329] Planning and Development Act 2005 (WA) s 81.

[330] Planning and Development Act 2005 (WA) s 82(1).

[331] See, Planning and Development Act 2005 (WA) s 82, s 84.

[332] See, Planning and Development Act 2005 (WA) s 86, s 87.

[334] Exhibit A, tab 267, 1688 ‑ 1699.

[336] Exhibit A, tab 268, 1701; tab 505, 3181.

[344] Exhibit A, tab 586, 3536 ‑ 3537; tab 591, 3546.

[345] Exhibit A, tab 599, 3562 ‑ 3563.

[350] Plaintiffs' further re-amended statement of claim, filed 22 June 2018 [39] ‑ [40]; defendants' second further re-amended defence and counterclaim, filed 8 January 2019 [38] ‑ [40].

[351] Defendants' second further re‑amended defence and counterclaim, filed 8 January 2019 [38] ‑ [40].

[352] The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 5] [2013] WASC 121 (S) [14].

[353] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] (Buss P, Murphy & Beech JJA).

[354] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] (Buss P, Murphy & Beech JJA).

[355] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] (Buss P, Murphy & Beech JJA) applying Frigger v Lean [2012] WASCA 66 [81].

[356] Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ); Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [12] (Buss P, Murphy & Beech JJA); Maio v City of Stirling [No 2] [2016] WASCA 45 (S) [25] (Martin CJ, Buss P & Murphy JA); Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) [3] (Martin CJ, McLure P & Buss JA).

[357] Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [12] (Martin CJ) applied in Blatchford v Laine [2018] WASC 207 (S) [40 (2)] (Vaughan J).

[358] Legal Profession Act 2008 (WA) s 280(2).

[359] Blatchford v Laine [2018] WASC 207 (S) [43] ‑ [53] (footnotes omitted).

[360] McRobert Superannuation Pty Ltd v Cranston [2019] WASC 376.

[361] ts 40, 55, 71 and 72, 13 February 2019.

[362] Affidavit of Josias Eduard Ferreira, sworn 5 November 2019 [10].

[363] Affidavit of Josias Eduard Ferreira, sworn 5 November 2019, attachment JEF 1, pages 13 - 15.

[364] The draft bill specifies separately the hours of work said to be carried out by senior and junior practitioners and the hourly rates claimed in respect of each are the maximum hourly rates.

[365] Affidavit of Josias Eduard Ferreira, sworn 5 November 2019 [14]-[21].

[366] Plaintiffs' outline of submissions in opposition to application filed 21 November 2019 [8] ‑ [14].

[367] Marsh v Baxter [2014] WASC 187 (S) [13] (Kenneth Martin J).

[368] Marsh v Baxter [2014] WASC 187 (S) [13] (Kenneth Martin J).

[369] Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) [5] (Martin CJ).