MEINERS (by her next friend the PUBLIC TRUSTEE) -v- GUNN [No 2] [2025] WASC 529 (12 December 2025)

Dear Associate,

As of today, my engagement as counsel for the defendant in this proceeding has concluded.

I understand that the Court and the plaintiff's representatives have the appropriate contact details for the defendant.

1. Following receipt of this correspondence, I listed the matter for directions on 30 January 2026.
2. On 22 January 2026, the plaintiff filed her submissions and an updated minute of proposed orders.
3. After hearing from the parties at the directions hearing on 30 January 2026, I made fresh programming orders requiring the defendant to file her submissions and any affidavits by 16 February 2026, the plaintiff to file any responsive documents by 20 February 2026 and listed the matter for hearing on 24 February 2026 in relation to the questions of remedy, orders and costs.
4. At the directions hearing, the defendant was provided with a copy of the orders made by the Court of Appeal made on 29 July 2022, and a copy of the transcript from that hearing. These documents are relevant to the costs orders sought by the plaintiff. At the directions hearing the defendant confirmed that she had a copy of the plaintiff's minute and submissions.
5. Following the directions hearing, the defendant corresponded with my chambers on several occasions seeking copies of transcripts, which were provided.
6. On 18 January 2026, the defendant filed a minute of proposed orders, her written submissions in support of those orders, and a second set of submissions responding to the plaintiff's minute and submissions.
7. On 24 February 2026, the parties also made oral submissions.
8. I will not summarise each of the parties' submissions. Rather, I will refer to the various orders sought and the relevant aspects of those submissions in the course of considering the issues relevant to the making of my orders. Whilst I have not summarised the submissions, it is important to record that I have had regard to all written and oral submissions.
9. However, there are four aspects of the defendant's submissions which do require some initial comment.
10. First, some aspects of the defendant's submissions can be characterised as submissions addressing or at times challenging findings made in my reasons for decision. The purpose of this hearing is to determine the appropriate orders to be made to give effect to my reasons for decision, and accordingly these submissions are not relevant to that task. These submissions are matters which may more properly be the subject of submissions on any appeal from my decision. I will therefore not refer to these particular submissions.
11. Secondly, the defendant draws attention to her position as a now unrepresented litigant, and the difficulties she faces in addressing the court on the matters relevant to the orders to be made. I accept that the defendant is at a disadvantage in this regard. The court has attempted, within the bounds of what is proper and appropriate, to mitigate any disadvantage. Steps taken in this regard include ensuring that the defendant has copies of court transcripts (without charge) and orders; requesting that counsel for the plaintiff addresses all reasonably relevant matters, including any matters raised by the defendant's former counsel on 12 December 2025; and explaining the relevant orders sought by the plaintiff and providing the defendant with the opportunity to respond to the orders sought by the plaintiff and submissions made by the plaintiff.
12. Thirdly, aspects of the defendant's submissions are in the form of evidence, regarding her assets and ability to pay sums of money. They are not in the form of affidavit evidence. Programming orders were made for the filing of affidavit evidence. Those programming orders were originally made when both parties were represented. Those orders did limit the affidavit evidence primarily to the question of costs, and not the appropriate remedy. Both parties agreed to these orders. For the purposes of this hearing, I observe that the defendant is not represented. I therefore have had regard to the information contained in the submissions that might be in the form of evidence for the purpose and in the manner detailed at the appropriate point in these reasons.
13. Fourthly, the defendant refers to trying to settle this matter with the plaintiff since 2018. The defendant also refers to the lack of any mediation or discussions with the Public Trustee and submits that such discussions or mediation would seem to be an important and necessary step to avoid ongoing litigation and to come to a reasonable remedy. In relation to this submission, I first observe that the Public Trustee only became involved as the guardian of the plaintiff some months after the re‑trial had concluded. In relation to the need for further mediation or discussions, whilst the parties are able to do so at any stage, and the court always encourages the parties to attempt to agree on an outcome, the time for court ordered mediation has passed. The re‑trial has taken place, my reasons for decision have been delivered, and it is necessary for the court to pronounce orders to give effect to these reasons.

1. By way of overview, the plaintiff seeks orders to the following effect:

(1) In terms of the primary remedy, the plaintiff seeks an order that the defendant pay the plaintiff the sum of $372,717.43 by way of equitable compensation. The plaintiff does not seek the imposition of a constructive trust. This amount is comprised of the two transfers from the plaintiff to the defendant;

(2) In addition to the above amount, the plaintiff also seeks the payment of $216,466 by way of pre‑judgment interest, calculated at a rate of 6% pursuant to s 32 of the Supreme Court Act 1935 (WA) (Supreme Court Act) from 1 June 2016 to 24 February 2026 (being 3555 days). The plaintiff therefore seeks an order that judgment be entered in the vicinity of $589,000.

(3) An equitable lien be granted over the Yokine Property and this lien secure payment of the judgment sum.

(4) If the judgment debt is not paid in full by 6 March 2026 then, pursuant to O 53 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC), the Yokine Property is to be sold.

(5) Orders that the freezing orders previously made by this court remain in place until the judgment debt has been paid or the sale of the Yokine Property has been settled, whichever is sooner.

(6) An order that the defendant pay the plaintiff's costs of the action, excluding the costs referred to in order 6 of the orders made by the Court of Appeal on 29 July 2022.

1. By way of overview, the defendant objects to these orders, and instead seeks orders to the following effect:

(1) Instead of the monetary order sought by the plaintiff, one of the following two options which I will summarise:

(a) The plaintiff lives in the Yokine Property or if she is not capable of living in the Yokine Property, the plaintiff rents out the Yokine Property until her death, at which time it reverts back to the defendant.

(b) The defendant pay the balance owing on the mortgage, being the amount of $186,000, which the defendant will do by using the amount of $181,000 in her superannuation fund, which the defendant submits she can only use if she changes jobs, which she says she can do.

(a) The plaintiff accepts a cash figure that meets her needs, but does not require the defendant to sell her home.

(b) The only cash the defendant has is her superannuation fund in the amount of $181,000 which the defendant can only use if she changes jobs, which she says she can do.

(2) The caveat remains over the Yokine Property, and therefore an equitable lien is not necessary.

1. I have considered the various orders needed to give effect to my reasons and have broken them down into the following issues:

(1) Is it appropriate to order the defendant to pay a sum of money by way of equitable compensation, and if so how much, or is it appropriate to make an order by way of a constructive trust or an order along the lines of options 1 or 2 advanced by the defendant?

(2) Is it appropriate to order pre-judgment interest, and if so at what rate and over what period?

(3) Is it appropriate to order an equitable lien?

(4) Is it appropriate to order that a sale take place of the Yokine Property pursuant to O 53 r 2?

(5) Is it appropriate to keep in place the freezing orders previously made by this court until the judgment debt or the Yokine Property has settled?

(6) What is the appropriate costs order?

1. Whilst I have identified these six issues, and I will consider each of these issues in turn, I am mindful that I must consider the orders I make as a whole. The orders proposed by both of the parties are proposed as part of a package of orders and I am considering the appropriate orders to make following my finding of unconscionable conduct in equity. Accordingly, although I have considered each of these issues, I have also considered the various orders as a whole.
2. I am mindful that when considering the appropriate orders to make, my conclusion in relation to the joint endeavour claim gives rise to a range of possible equitable relief. The precise relief ordered must be determined having regard to the extent of the unconscionable conduct of the defendant, viewed in light of the circumstances as a whole.
3. The various cases involving unconscionable dealings and joint endeavours have identified different possible remedies and orders. The remedy is usually ultimately directed to ensuring that the defendant repay the windfall gain that would otherwise be unconscionably retained by the defendant.[1]
4. The various possible remedies identified include:

(1) the imposition of a constructive trust, see for example in Muschinski v Dodds[2] and Baumgartner v Baumgartner[3]; and

(2) the payment of equitable compensation, sometimes with interest and sometimes secured by an equitable lien or charge, see for example Krajovaska v Kravjovska,[4] and Henderson v Miles (No 2),[5] Morris v Morris[6] and the decision of Gibbs CJ in Muschinski v Dodds[7].

1. Further, when considering the appropriate relief, I must also have regard to the minimum equity rule, which recognises that the court will give the minimum equity necessary to relieve the conscience of the defendant and do justice to the plaintiff. Accordingly, before a constructive trust is imposed, I should first consider whether, having regard to the issues in the litigation, there are other means to quell the controversy between the parties.[8]

Issue 1 - equitable compensation/constructive trust/defendant's option 1

1. The respective positions of the parties are that the plaintiff seeks an order for equitable compensation (and not a constructive trust), combined with pre‑judgment interest and an equitable lien.
2. The plaintiff submits that such an order will meet the objectives of ensuring that the defendant atone for the unconscionable conduct and are consistent with ensuring that the minimum equity is done.
3. The defendant seeks option 1 instead, being an arrangement whereby the plaintiff lives in the Yokine Property or if she is not capable of living in the Yokine Property, the plaintiff rents out the Yokine Property until her death, at which time it reverts back to the defendant. The defendant submits that she has spent $150,000 on renovations to the Yokine Property, such that it has been split into two areas and there is the capacity for the plaintiff to live in one area and a carer in the other area.
4. As part of option 1, the defendant submits that she would need to pay the balance owing on the mortgage, being the amount of $186,000, which the defendant will do by using the amount of $181,000 in her superannuation fund, which the defendant submits she can only do if she changes jobs, which she says she can do.
5. The defendant's position is that it was always intended that the Yokine Property be her home to live in, and she sold the Cookernup Property to purchase the Yokine Property and this option ensures that she retains ownership of the Yokine Property. The defendant submits that if an order is made for equitable compensation in the amount sought and/or an order for the sale of the Yokine Property, she will lose her home and be destitute for the next 20 years, given the increases in house prices and rent in Perth.
6. In response to option 1, the plaintiff submits that this will not atone for the unconscionable conduct, as it will not result in the disgorgement of the amount transferred by the plaintiff to the defendant for the purposes of the joint endeavour.
7. Further, counsel for the plaintiff provided a copy of an affidavit of the plaintiff's guardian. That affidavit was incorrectly sworn, and therefore the plaintiff did not seek to rely on it as evidence, but rather as instructions. In the same manner as I have considered the defendant's evidentiary submissions, I will consider the plaintiff's submissions in this respect. In short, the position is that counsel is instructed that the plaintiff's guardian does not consent to option 1, as the plaintiff has suffered a stroke and therefore cannot live in the Yokine Property now as she has higher level care needs.
8. In all the circumstances, I am satisfied that an award of equitable compensation, as opposed to a constructive trust or option 1 is the appropriate remedy.
9. I do not consider that a constructive trust is the appropriate remedy on the facts of this case for the following reasons:

(1) The joint endeavour failed between March and May 2016, which was very early in the joint endeavour. Since that time, the defendant has had exclusive possession of the Yokine Property, and has maintained the property, paid the mortgage payments and undertaken some renovations on the Yokine Property.

(2) The plaintiff never lived in the Yokine Property and has not contributed to the maintenance of the property, the renovations or the mortgage payments over time, over and above the amounts of the two transfers.

(3) I have found that the joint endeavour was that the parties agreed to pool their resources and purchase one or two properties near Briana for them to live in to provide for their mutual welfare and benefit. I have found that after the sale of the Ashlar Glen lease, the joint endeavour evolved such that the proposal was for the defendant to continue to live in the Yokine Property, and a second property would be purchased for the plaintiff to live in, using the proceeds of the second transfer and the sale of the Cookernup Property.[9] That is, the joint endeavour contemplated that the defendant would continue to live in the Yokine Property whilst an alternative property was purchased for the plaintiff.

(4) The relationship between the parties has completely broken down such that this is not a case where the parties can reside together in the property or a case where co-ownership of the Yokine Property will quell the controversy between the parties.

(5) The amount of the plaintiff's contribution to the joint endeavour is clear and ascertainable.

(6) It appears that there is a still a mortgage over the property, with money owing by the defendant to her bank, which further complicates the imposition of a constructive trust.

1. I also do not consider option 1 advanced by the defendant is an appropriate remedy for the following reasons:

(1) The option proceeds on the basis that legal title in the Yokine Property would at all times remain with the defendant. I consider there are too many uncertainties as to how the option would operate in practice if the plaintiff is not the registered proprietor of the property, particularly in so far as it is being proposed that the plaintiff could rent out the Yokine Property, as that appears to be the option that would be pursued given the plaintiff's inability to now live in the Yokine Property.

(2) The currently existing mortgage would need to be considered. The option proposes that the defendant would pay this mortgage, but this is dependent on the defendant being able to access her superannuation. The defendant submits that she is able to access her superannuation at her age, if she leaves her current job. The defendant submits that she has found another job. On the basis of the material before me, even if it were in affidavit form, the ability for this to occur, and if so the timing, is speculative and contingent on factors beyond the ability of the plaintiff or the court to control.

(3) I do not consider option 1 appropriately responds to the windfall gain of the defendant when considered in the circumstances of the entire case. It does not appropriately address the two transfers of money in a timely fashion and does not appropriately result in the atonement for the unconscionable conduct.

(4) I do not consider that option 1 will therefore quell the controversy between the parties, and in light of the first two matters I have identified, I am concerned that it may result in further controversies between the parties in the future.

1. In considering option 1, I have had regard to the defendant's submission that the option advanced by the plaintiff will result in her being destitute moving forward. The defendant relies on the fact that she will retire in three years, that the Yokine Property is her only house, that there has been an increase in house prices and rents, and that she will be unable to afford anything else in the future. I observe that the matters raised by the defendant, even if they were in affidavit form, fall short of demonstrating the complete financial position of the defendant going forward. This is particularly the case in light of the lack of information as to the current assets of the defendant, the present value of the Yokine Property or other properties or rents.
2. More significantly however, I am required to consider the appropriate remedy to give effect to my reasons for decision, having regard to the unconscionable conduct of the defendant, when considered in view of all the circumstances. The matters raised by the defendant do not assist in this task.
3. In these circumstances, I consider the appropriate remedy is an order for equitable compensation. In this regard, the amount of the plaintiff's contributions to the joint endeavour is clear and ascertainable, and such an award will ensure that the amount of the windfall gain which the defendant has unconscionably retained is repaid. I consider this is a suitable lesser remedy that will quell the controversy between the parties.
4. In terms of the amount of equitable compensation, the plaintiff seeks the combined amount of the two transfers, being $372,717.43.
5. However, at [462] of my reasons for decision, I found that the defendant had paid the plaintiff the sum of $7,000. Accordingly, I consider it appropriate to reduce the amount of equitable compensation by this amount, resulting in a total of $365,717.43. The plaintiff submits that there has been no claim for an equitable set-off and that I did not make a finding that the $7,000 was paid by way of 're-payment' of the transfers. I am satisfied that when my finding is considered in the context of my reasons as a whole, I have found that this sum of money was paid by the defendant to the plaintiff in the period of time after the plaintiff left Ashlar Glen, and was waiting for the defendant to purchase another property for her to live in. In these circumstances, I am satisfied that it is appropriate to deduct this amount from the total amount of the two transfers.
6. The defendant in her submissions says that the amount repaid by her was $7,500. However, as that is not the finding I made, I will use the figure consistent with my reasons for decision.
7. The defendant also advances, by way of option 2, an order that the plaintiff be paid a lesser sum, being a sum that meets both the plaintiff's needs, but does not require the defendant to sell the Yokine Property. The defendant submits that she has the sum of $181,000 in her superannuation account, which is the sum she would ultimately pay.
8. I am not satisfied that any lesser amount of equitable compensation, including the sum of $181,000, is appropriate. The amount of the windfall gain which the defendant has unconscionably retained following the breakdown of the relationship and the joint endeavour is the sum of the two transfers, minus the $7,000 payment. Any lesser sum would therefore not quell the controversy between the parties and does not pay due regard to the defendant's unconscionable conduct viewed in light of the circumstances as a whole.

1. The plaintiff seeks pre-judgment interest pursuant to s 32 of the Supreme Court Act for the period from 1 June 2016, until the date of these orders, at the rate of 6% per annum.
2. Section 32(1) of the Supreme Court Act provides:

In any proceedings for the recovery of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.

1. The legal principles relevant to s 32 were detailed in the Court of Appeal decisions of Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence[10] and Daniels v Daniels[11]. I have applied these principles.
2. It is not necessary to set out in full what was said in these authorities, rather it is relevant to observe that:

(1) section 32(1) provides for a discretion, and there is no entitlement to an award of pre-judgment interest;

(2) that discretion applies where there are proceedings for the recovery of any money;

(3) an award of pre-judgement interest is compensatory in character, to compensate the claimant for having been kept out of the money which theoretically was due to him or her at the date the loss commenced; and

(4) a fourfold discretion arises in relation to s 32, being whether to order interest at all; if so, the interest rate to be applied; the amount on which interest accrues (which may be an amount less than the whole of the judgment); and, finally, over what period interest is to run.

1. The defendant opposes an order for pre-judgment interest.
2. The defendant submits that she should not be ordered to pay interest due to the delay in this matter. The defendant submits that she was an unrepresented litigant, facing litigation in three different courts, and there was a successful appeal from the first trial. The defendant submits that the delay was not caused by her, and she should not have to pay interest for that period of time. I understand that the defendant also relies on her general submissions about her inability to pay and the effect an interest order in the amount claimed would have on her and her future.
3. I accept the defendant's submission that there has been delay in this matter, and that the question of delay is relevant to the exercise of my discretion in awarding pre-judgment interest.[12]
4. I also accept that the plaintiff has been without the money comprising the first and second transfers for around 10 years and also without access to the Yokine Property, or an alternative property, for that period.
5. In all the circumstances, I consider, in the exercise of my discretion, that the plaintiff ought to be entitled to some pre-judgment interest, to reflect the fact that she has not had access to her money comprising the first or second transfers for around 10 years, and has not had access to the Yokine Property, or a replacement property, for about the same period.
6. However, I do not consider the plaintiff should be entitled to pre‑judgment interest for the entirety of the period of time sought in her minute of proposed orders.
7. I agree the appropriate starting date should be 1 June 2016, as this corresponds with the next day after the latest date by which I found the joint endeavour failed (being at some point between March 2016 and May 2016). This is the date from which the plaintiff has been unable to have access to her monetary contributions to the failed joint endeavour.
8. The final date should be the date these orders are made, being 24 February 2026.
9. However, I consider the period of time from the start of the first trial to the delivery of the decision of the Court of Appeal should be excluded from the period of time for which pre‑judgment interest should be granted. This is the period of time from 3 December 2018 to 29 July 2022. This is a total of 1334 days.
10. I consider this period of time should be excluded as it represents the time comprising the original trial, in which the plaintiff was ultimately entirely unsuccessful plus the period of time needed for an appeal and an appeal decision to reach this conclusion. The reasons for the successful appeal concerned the specific pleadings, the manner in which the plaintiff conducted the first trial and the corresponding denial of procedural fairness to the defendant that arose out of the conduct of the trial. I agree that these were not matters attributable to the defendant.
11. What is effectively left, is the period from the breakdown of the joint endeavour to the time needed for the plaintiff to obtain judgment in her favour with one trial for which she was successful.
12. Counsel for the plaintiff submits that this delay is not something that should be visited on the plaintiff either, and that the plaintiff was required to come to court, and go to trial, to obtain vindication of her claim, and the defendant could have prevented all court action at any time. Counsel for the plaintiff also submits that there were periods of delay due to court time, and not only the actions of the plaintiff.
13. The purpose of an award of pre‑judgment interest is to compensate the successful party to a money judgment for the time that the party has been kept out of the use of their money. I accept that part of that time in the present case is due to the actions of the defendant, however I also accept that part of that time is not due to the actions of the defendant. I therefore consider that it is appropriate to reduce the period of time over which pre‑judgment interest is to be paid.
14. I therefore consider, in the exercise of my discretion, that it is appropriate to order pre-judgment interest at the rate utilised in the Civil Judgments Enforcement Act 2004 (WA) of 6% per annum for a total period of 2221 days. The number of days is calculated as:

3555 days (being from 1 June 2016 to 24 February 2026) - 1334 days

1. The comes to the amount of $133,521.93, calculated as:

1. The result is a total amount of: $499,239.36 if the equitable compensation and pre‑judgment interest are added together.

1. The plaintiff also seeks an equitable lien to secure the judgment sum she seeks.
2. An equitable lien is similar to, but not the same as, an equitable charge.
3. The nature of an equitable lien was outlined by the High Court in Hewett v Court.[13]
4. It is not necessary to set out in full what was said by their Honours, rather it is sufficient to observe that:

(1) An equitable lien, unlike an equitable charge, does not depend either upon contract or upon possession. It arises automatically by operation of law, under a doctrine of equity 'as part of a scheme of equitable adjustment of mutual rights and obligations', to secure the discharge of an actual or potential indebtedness.

(2) It would be difficult, if not impossible, to state a general principle which would cover the diversity of cases in which an equitable lien has been held to be created. The rules governing the circumstances in which equity has considered that justice requires the recognition of the existence of a lien are not confined to one narrow category and the lists may not be closed.

(3) The implication of an equitable lien may, in a particular case, be precluded or qualified by the agreement (express or implied) of the parties.

(4) An equitable lien is not a traditional mortgage and does not transfer any title to the property in question. Rather, an equitable lien may be enforced by a court order for the sale of the subject property, or by a court order for payment from the subject fund, as appropriate.

(5) An equitable lien does not depend on the ability to trace the contributions, and may operate provided there is a sufficient nexus between the contribution and the property over which the lien is implied.

1. See also the decisions of Stephenson Nominees Pty Ltd v Official Receiver[14] and Coad v Wellness Pursuit Pty Ltd (in liq).[15]
2. The plaintiff seeks an order for the payment of equitable compensation and pre‑judgment interest, secured by an equitable lien.
3. The plaintiff submits that the above remedy would be consistent with the requirement that the minimum equity necessary be applied.
4. Ms Gunn submits that there is no need for an equitable lien, as there are freezing orders in place over the Yokine Property, and also a caveat.
5. However, neither the caveat nor the freezing orders themselves confer a security interest.
6. Rather, the freezing orders prevent the defendant from dealing with the property that has been frozen, otherwise than in accordance with the orders, and subject to any orders of the court.
7. The purpose of a caveat against dealings under s 137 of the Transfer of Land Act 1893 (WA) is to operate as an injunction to the Registrar of Titles to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.[16]
8. That is, the freezing orders and the caveat serve a different purpose.
9. I am therefore satisfied that any order for equitable compensation should also be accompanied by the security of an order for the implication of an equitable lien.
10. I observe that the Yokine Property is subject to a registered mortgage. The parties have confirmed that the mortgagee is the Commonwealth Bank. They are not present here today. Counsel for the plaintiff explained to the court that his instructors have been in contact with the bank, and provided them with a copy of the plaintiff's proposed orders, and the bank did not wish to attend and be heard. A copy of that email was shown to the defendant and the court.
11. I do not consider the imposition of an equitable lien would disadvantage the bank, as the equitable lien would only arise from the date on which the joint endeavour broke down and the defendant retained the benefits of both the transfers and the Yokine Property. In my reasons for decision, I concluded this occurred at some point between March 2016 and May 2016, which is after the defendant obtained the mortgage and after it was registered. There was no dispute from the plaintiff that the registered mortgage would rank above any equitable lien and the plaintiff's minute of proposed orders proceeds on that basis, see order 5(i)(i).
12. I am also satisfied that it is appropriate for the equitable lien to be applied to the Yokine Property, for the following reasons:

(1) I have made findings of fact in my reasons for decision that the plaintiff contributed to the joint endeavour by selling the Armadale Property and transferring those funds to the defendant in two transfers.[17]

(2) I have made findings of fact that the defendant's contribution to the joint endeavour was obtaining a bank loan for, and purchasing, the Yokine Property.[18]

(3) I have made findings that the defendant used $104,863.23 of the first transfer for the purposes of purchasing the Yokine Property.[19]

(4) I have made findings that in the period between 10 December 2015 and 29 December 2015, the defendant used $216,000 of the second transfer to pay into her Commonwealth Bank home loan account for the Yokine Property to reduce that loan.[20]

(5) There was no evidence before me that any other property was purchased by the defendant using the first and/or second transfers.

(6) The defendant has had the exclusive possession and use of the Yokine Property since it was purchased.

1. I am satisfied that an award of equitable compensation, combined with the imposition of an equitable lien, is the most appropriate remedy, having regard to the extent of the unconscionable conduct of the defendant and viewed in light of the circumstances as a whole, which will ensure that the defendant repays the windfall gain that would otherwise be unconscionably retained.

Issue 4 - order for sale of the Yokine Property

1. The plaintiff also seeks an order pursuant to O 53 r 2 of the RSC for the sale of the Yokine Property, if the judgment debt is not paid in full by 6 March 2026 (order 4). The plaintiff also seeks various directions regarding how that sale should occur (order 5).
2. The date of 6 March 2026 was originally included on the basis that this hearing would take place on 2 February 2026.
3. Order 53 r 2 provides that:

If in any cause or matter relating to any land it appears necessary or expedient for the purposes of the cause or matter that the land or any part thereof should be sold, the Court may order that land or part to be sold, and any party bound by the order and in possession of that land or part, or in receipt of the rents and profits thereof, shall deliver up such possession or receipt to the purchaser or to such other person as the court may direct.

1. Order 53 r 3(1) provides the court with the power to appoint a party or some other person to have conduct of the sale. Order 53 r 4(1) provides that the court may give such further directions as it thinks fit for the purposes of effecting the sale, including directions about the various factors identified in that rule.
2. I have not been referred to any Western Australian cases regarding the application of O 53 r 2, and the court's research has also been unable to identify any cases.
3. However, in the recent Victorian decision of M & H Allen Services Pty Ltd v Blue Sea Container Storage Pty Ltd,[21] M Osborne J considered the historical development and operation of the Victorian equivalent to O 53 r 2. His Honour concluded, by way of obiter, that:
   1. Both the plain wording of the rule and its historical origins, make clear that ord 55 can only be invoked where the applicant is able to establish some legal right or recognised equity entitling the applicant to an order for sale.
4. His Honour gave as an example of such a recognised equity, the situation where an equitable chargee seeks an order for the sale of secured property.
5. As an equitable lienee is able to seek an order for the sale of secured property, I am satisfied that O 53 r 2 is therefore able to be invoked in this case.
6. The question is whether I ought to invoke it as part of the package of orders sought by the plaintiff.
7. I am satisfied that it is necessary or expedient for the purposes of the cause of action for the Yokine Property to be sold if the equitable compensation and pre‑judgment interest amounts are not paid within one month (that is by 24 March 2026), for the following reasons:

(1) The two transfers were made in 2014 and 2015, that is over 10 years ago. The defendant has had the benefit of the money, and exclusive possession of the Yokine Property for this entire period of time. The plaintiff has had neither.

(2) The orders seek an order for sale only after the defendant is first given the opportunity to pay the amount of money to the plaintiff within one month. This provides the defendant with an opportunity to raise the money by alternative means. The defendant has also been aware of my reasons for decision since 12 December 2025.

(3) The effect of the defendant's submissions is that she is not in a position to pay the amount of money sought by the plaintiff, save for the amount of $181,000 in the superannuation account, which she can only access if she changes jobs, which she says she can do. In these circumstances, I consider that if the defendant is unable to raise the money within a period of one month, it seems unlikely that the defendant will be able to raise the money in a reasonable time, and therefore the Yokine Property should be sold to relieve the conscience of the defendant and do justice to the plaintiff, without any further delay.

1. In terms of the various directions sought by the plaintiff in order 5 of her minute, I am satisfied that each is appropriate for the purposes of giving effect to the sale of the Yokine Property. In broad terms, the plaintiff seeks an order that the Public Trustee be the party or person appointed to have the conduct of the sale. I consider that this is appropriate in the circumstances of the case.
2. I will not read out today all of the other directions sought, but the key directions are that the Public Trustee:

(1) be authorised to instruct a licensed real estate agent or auctioneer to conduct the sale;

(2) that the Yokine Property be sold by private treaty on the advice of the real estate agent;

(3) if the Yokine Property is not sold within four months, that it be sold by auction;

(4) that the Yokine Property be sold subject to the Real Estate Institute of Western Australia's General Conditions for the Sale of Land;

(5) that within 48 hours of receiving a written request, the defendant shall deliver up any documents, do all things necessary, and then sign all documents required for the purpose of the sale to the Public Trustee;

(6) in the event the defendant refuses or neglects to sign any documents, a registrar of the court is appointed to execute all documents in the name of the defendant and do all acts and things to give validity and operation to the documents;

(7) the proceeds of the sale be distributed in the following priority:

(a) first, to discharge any bank mortgage secured over the Yokine Property, and any costs to the bank as well;

(b) second, to pay all fees and expenses incurred in connection with the sale and settlement of the Yokine Property;

(c) third, in payment of the Judgment Debt; and

(d) fourth, any surplus remaining to be paid to the defendant;

(8) within 14 days of the sale of the Yokine Property, the Public Trustee shall cause to be filed an affidavit by the auctioneer or real estate agent or settlement agent exhibiting a statement certifying the result of the sale and the expenses incurred in connection therewith.

1. I consider each of the proposed directions are appropriate to give effect to the sale of the Yokine Property, with one clarification to order 5(i)(i) to include reference to any costs to the bank.

1. I also agree that the freezing orders should remain in place until the payment of the judgment debt or the settlement of the Yokine Property. There is no evidence before me that the underlying reasons for the imposition of the freezing orders has changed. The freezing orders include an order for liberty to apply, and therefore if any amendments are sought in the future, including amendments necessary to facilitate the payment of any amount ordered to be paid or to facilitate the sale, or any other amendments, an application may be made.

1. The plaintiff seeks an order that the defendant pay the plaintiff's costs of the actions, with some exceptions (order 9).
2. The legal principles concerning the award of costs are well known.
3. In accordance with s 37 of the Supreme Court Act and O 66 of the RSC, the court has a broad discretion to award costs. That discretion must be exercised judicially. The costs discretion must be exercised to achieve what is fair and just between the parties according to the circumstances of the particular case, recognising that costs orders serve a compensatory function, not a punitive one.[22]
4. In accordance with O 66 r 1(1) of the RSC, without limiting the court's discretion, the court will generally order that the successful party to any action or matter, recover their costs. It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs.[23]
5. As explained by the Court of Appeal in Strzelecki Holdings v Jorgensen,[24] the court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the RSC, together with the practice of the court, and authority.
6. Under O 66 r 1(3) of the RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the court may order such party to pay the costs of such issue or issues. It is well recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for the following reasons:[25]

(1) it is often the case that a successful party will not succeed on every issue raised; and

(2) to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments.

1. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way.[26]
2. The plaintiff submits that she was the successful party at trial, and I accept this submission. The plaintiff has succeeded at trial and has needed to come to court to seek vindication of her claim. The general rule is therefore that the defendant should pay the plaintiff's costs.
3. However, I observe that the plaintiff ran two claims at the re‑trial, being unconscionable dealings on the basis of a joint endeavour and unconscionable dealings on the basis of a special disadvantage.
4. The plaintiff was successful in relation to her case for unconscionable dealings on the basis of a joint endeavour, but was not successful in relation to her claim in relation to unconscionable dealings on the basis of a special disadvantage.
5. I therefore considered whether this is a case where it is appropriate to depart from the usual costs position and award costs on the basis of issues.
6. I do not consider this is appropriate in the present case for the following reasons:

(1) Both of the plaintiff's claims arose out of the same set of facts. All the facts pleaded, and evidence led, about the various factors making up the claimed special disadvantage were facts that were also relevant to the joint endeavour claim. It is therefore not the case that the facts relevant to the special disadvantage claim can be easily separated from the facts underpinning the joint endeavour claim.

(2) The special disadvantage claim did not lead to discernible extra time or costs being incurred in the form of pleadings, evidence, submissions or time at re‑trial.

1. The defendant also submits that there should be no order as to costs, due to the delay, the successful appeal, the need for a re‑trial, and her inability to pay.
2. In relation to the original trial and appeal, I observe that the Court of Appeal has already addressed these issues in orders 6 to 7 made on 29 July 2022. I discuss these orders later in these reasons. But in short, there has already been an order that there be no orders as to costs in relation to the original trial and the appeal. I am bound by that order.
3. In terms of the defendant's inability to pay, I observe that the information before me, even if it were in affidavit form, falls far short of demonstrating that the defendant has no assets available to pay a costs order. However, more significantly, the inability of an unsuccessful party to meet a costs order is not a sufficient reason to deny a successful party their costs.[27]
4. I therefore consider in the exercise of my discretion that the appropriate costs order is that the defendant pay the plaintiff's costs of the action. However, I consider that some costs should be excluded from this costs order and the defendant should not be required to pay these excluded costs.
5. First, orders 6 to 7 of the orders of the Court of Appeal made on 29 July 2022 are relevant to the question of costs. The Court of Appeal ordered that:

1. There be no order as to the costs in respect of an incidental to the trial before Strk AJ on 3 - 5 December 2018 and 12 - 18 December 2018 including but not limited to:

(a) the preparation and attendances of both counsel at the directions hearings on 16 November 2018 and 28 November 2018;
>
> (b) the preparation and attendances of both counsel at the original trial; and
>
> (c) the preparation of the written submissions opening and closing submissions.

1. Otherwise, the costs of the action to date be reserved to the trial judge.
2. The costs order sought by the plaintiff, is that the defendant pay the plaintiff's costs of the action, excluding those costs referred to in order 6 of the Court of Appeal orders. That is, excluding the costs of the original trial and the specific items mentioned.
3. As counsel for the plaintiff explained, they were seeking the remaining costs of the action, including the costs of the re‑trial, pleadings, and all other appearances and matters covered under the relevant costs scale.
4. I am bound by the orders of the Court of Appeal and therefore those costs will be excluded.
5. Secondly, I also consider that there are some other costs that should be excluded from the costs order. Following the decision of the Court of Appeal, it was necessary for the plaintiff to re‑plead her case for the re‑trial. The amendments to the pleadings were necessary to remove the causes of action which fell outside the scope of the re‑trial, and also to plead the case that had not originally been pleaded, but which had been remitted to me for re‑trial, being the case on which the plaintiff was ultimately successful. The plaintiff was not successful at the re‑trial on the basis of the pleadings as they existed in the original trial.
6. In these circumstances, I consider there should be no order as to costs in relation to the pleadings prior to the further substituted statement of claim filed on 21 July 2023. As counsel for the plaintiff submitted, it may be that these costs were intended to fall within the scope of the Court of Appeal orders and therefore be excluded, but for the avoidance of doubt, I will make an order to that effect.
7. I therefore consider in the exercise of my discretion that the appropriate costs order is that the defendant pay the plaintiff's costs of the action, excluding the two matters I have just referred to.

1. In light of my conclusions in relation to the above issues, I have also had regard to the appropriate orders as a whole.
2. I am satisfied that the appropriate orders are largely in the form sought by the plaintiff, with some amendments as to the amount of equitable compensation; the period of time over which pre‑judgment interest should be awarded and the matters which are to be excluded from a costs order.
3. The following orders were then made:

Judgment Sum

(1) The defendant do pay to the plaintiff the sum of $365,717.43 plus interest calculated in the amount of $133,521.93 and judgment be entered in the sum of $499,239.36 (Judgment Sum).

(2) An equitable lien is hereby granted over the defendant's property at [Redacted] (Yokine Property).

(3) The lien shall secure the payment of the Judgment Sum and any post judgment interest calculated at the rate of 6% pursuant to section 8 of the Civil Judgments Enforcement Act 2004 (WA) and Regulation 4 of the Civil Judgments Enforcement Regulations 2005 (WA) (the Judgment Debt).

(4) If the Judgment Debt is not paid in full by 24 March 2026, then pursuant to Order 53 rule 2 of the Rules of the Supreme Court 1971 (WA), the Yokine Property is to be sold free from the encumbrances (if any) of such of the encumbrances as shall consent to the sale and subject to the encumbrances of such of them as shall not consent.

Sale of Property

(5) For the purpose of facilitating the sale of the Yokine Property, the Court makes the following directions:

(a) The Public Trustee shall have the conduct of the sale of the Yokine Property and be authorised to instruct a licensed real estate agent, settlement agent or auctioneer for that purpose.

(b) The Yokine Property shall be sold by private treaty according to the procedure determined on the advice of the licensed real estate agent appointed by the Public Trustee.

(c) In the event that the Yokine Property remains unsold for 4 months from the date of the instructions of a licensed real estate agent, the Yokine Property shall be sold by auction.

(d) The Yokine Property shall be sold subject to the Real Estate Institute of Western Australia's General Conditions for the Sale of Land.

(e) The reserve price for the Yokine Property shall be determined by agreement between the parties or, failing agreement, by a licensed valuer appointed by agreement of the parties or, failing agreement, by a licensed valuer nominated by the Chair of the Western Australia State Committee of the Australian Property Institute. The valuation by the appointed valuer will be final and binding on the parties.

(f) Within 48 hours of receiving a written request, the defendant shall deliver up any documents, do all things necessary, and sign all documents required for the purpose of the sale to the Public Trustee.

(g) In the event that the defendant refuses or neglects to sign any documents required to be signed by the defendant in compliance with the paragraphs of this order, a Registrar of this Honourable Court is hereby appointed to execute all documents in the name of the defendant and do all acts and things to give validity and operation to the documents.

(h) The remuneration of the auctioneer, settlement agent, valuers and licensed real estate agents to be fixed in accordance with the scale of charges of the Real Estate Institute of Western Australia Incorporated, where applicable, or otherwise remuneration shall be a reasonable market rate determined by the Public Trustee.

(i) The proceeds of sale be distributed in the following priority:

1. First, to discharge any bank mortgage secured over the Yokine Property and any costs to the bank of the sale;

2. Second, to pay all fees and expenses incurred in connection with the sale and settlement of the Yokine Property;

3. Third, in payment of the Judgment Debt; and

4. Fourth, any surplus remaining to be paid to the defendant.

(j) Within 14 days of the sale of the Yokine Property, the Public Trustee shall cause to be filed an affidavit by the auctioneer or real estate agent or settlement agent exhibiting a statement certifying the result of the sale and the expenses incurred in connection therewith.

(a) The orders made herein do not prevent the plaintiff from pursuing her legal rights to recover the Judgment Debt or any part thereof in accordance with the provisions of the Civil Judgments Enforcement Act 2004 (WA); and

(b) The plaintiff's rights in law or equity to recover the Judgment Debt or any part thereof remaining unpaid are preserved.

(7) Save as provided for above, the Freezing Orders made on 23 August 2018 as varied on 28 August 2018, 14 September 2018, 18 September 2018, 21 September 2018, and 29 July 2022 shall remain in effect until the Judgment Debt has been paid in full or the sale of the Yokine Property has been settled whichever is the sooner.

(8) The plaintiff provide a copy of these orders to the Commonwealth Bank of Australia within 48 hours of these orders being extracted.

Costs

(9) The defendant do pay the plaintiff's costs of the action to be taxed if not agreed, excluding the following:

(a) the matters the subject of order 6 of the orders made by the Court of Appeal on 29 July 2022; and

(b) the preparation of all pleadings prior to the Further Substituted Statement of Claim filed on 21 July 2023, for which there will be no order as to costs.

(10) The parties have liberty to apply on 48 hours written notice.

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

[1] Henderson v Miles (No 2) [2005] NSWSC 867 [13] - [20].

[2] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583.

[3] Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137.

[4] Krajovska v Krajovska [2011] NSWSC 903; Krajovska v Krajovska [2011] NSWSC 1026.

[5] Henderson v Miles (No 2) [2005] NSWSC 867.

[6] Morris v Morris [1982] 1 NSWLR 61.

[7] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 598.

[8] Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566 [42]; Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 [10]; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corp Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 [128].

[9] Meiners (by her next friend the Public Trustee) v Gunn [No 2] [2025] WASC 529 [549], [670] (Reasons for Decision).

[10] Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [59] ‑ [60].

[11] Daniels v Daniels (By His Guardian Ad Litem the Public Trustee) [2008] WASCA 230 [76].

[12] See Lorebray Pty Ltd v Liddy (No 3) [2024] NSWSC 1257 [14].

[13] Hewett v Court [1983] HCA 7; (1983) 149 CLR 639, 644 ‑ 646 (Gibbs CJ), 663 ‑ 664 (Deane J), 653 (Wilson & Dawson JJ).

[14] Stephenson Nominees Pty Ltd v Official Receiver (1987) 76 ALR 485, 504 (Gummow J).

[15] Coad v Wellness Pursuit Pty Ltd (in liq) [2009] WASCA 68; (2009) 40 WAR 53 [41] - [43].

[16] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.

[17] Reasons for Decision [42], [48], [671].

[21] M & H Allen Services Pty Ltd v Blue Sea Container Storage Pty Ltd [2025] VSC 463 [142] - [161].

[22] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 563 (Toohey J), 567 (McHugh J).

[23] Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [5].

[24] Strzelecki Holdings v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [50].

[25] Strzelecki Holdings v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [51].

[26] Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7].

[27] Hunter v City of Joondalup [2018] WASCA 166 (S) [9]; Smolarek v Roper [2009] WASCA 124 (S) [11].