OHM -v- ZSH [2026] WASC 52 (27 February 2026)

the plaintiffs sought to adjourn the hearing of the Interlocutory Process further. I granted that adjournment over objection.

1. The Interlocutory Process came back before me on 25 February 2026.

1. Relevantly, for present purposes, the plaintiffs read the affidavits of the second plaintiff:
   1. made on 3 February and filed on 4 February 2026 (second plaintiff's first affidavit);
   2. made and filed on 17 February 2026 (second plaintiff's second affidavit); and
   3. made and filed on 23 February 2026 (second plaintiff's third affidavit).
2. The first defendant read:
   1. his affidavit, which was made in Chinese and which had been translated into English by Ms Tao, whose affidavit was made and filed on 16 February 2026;
   2. an affidavit of one of his solicitors, Samuel James Dundas, made and filed on 16 February 2026; and
   3. an affidavit of another translator, Qing Zhao, made and filed on 24 February 2026.
3. The two translators' affidavits were objected to by the plaintiffs.
4. For present purposes I have taken the two English translations of the first defendant's Chinese affidavit into evidence, noting that the Chinese affidavit has been in evidence since 16 February 2026 and no infelicities or mis‑translations have been identified to the Court by the plaintiffs.
5. As will be seen, further affidavits were also filed on behalf of the plaintiffs, which are discussed further below, and which went to:
   1. the appointment of a next friend for the first plaintiff; and
   2. the non‑disclosure of certain matters to this Court relating to the Family Court proceedings.
6. At the hearing on 17 February 2026, by agreement, the following documents from the Family Court proceedings were handed up to the Court for its consideration, namely:
   1. a Form 1 - Initiating Application which I marked 'MFI‑1';
   2. orders made by Jones J on 6 February 2026 (Jones J Orders) which I marked as 'MFI‑2': these first two documents were the documents sent to the Court after hours on 16 February 2026;
   3. an affidavit made by Mr T[3] on 5 February 2026 which I marked as 'MFI 3'; and
   4. an affidavit of the second plaintiff made on 5 February 2026 which I marked as 'MFI‑4' (the second plaintiff's Family Court affidavit).
7. Where I have referred to matters from those Family Court documents below, then I have taken those matters to be established in whole or part by the Family Court documents. I have not needed to determine the admissibility or reliability of any other part of the documents.

1. The heading to the Originating Process and the Interlocutory Process stated that the first plaintiff was 'acting by her enduring attorney, [the second plaintiff]'.
2. In his first affidavit, the second plaintiff deposed that the first plaintiff had granted him an enduring power of attorney by an instrument dated 20 November 2025 (Power) under the Guardianship and Administration Act 1990 (WA) (GA Act).[4]
3. The Power authorised the second plaintiff: 'to do on my behalf anything that I can lawfully do by an attorney'.
4. The Power had annexed to it a consultant neurologist's opinion dated 19 November 2025, which concluded:

... I find her mentally competent at this point of time to execute an Enduring Power of Attorney as well as an Enduring Power of Guardianship. Barring any sudden medical illness, this certificate of mental competence will be valid for one month. [5]

1. In the body of his first affidavit, the second plaintiff deposed that:
   1. he had informed the first plaintiff of the proceedings and their nature, and she had consented to being named as a plaintiff;[6] and
   2. the first plaintiff had been diagnosed with and is suffering from dementia.[7]
2. At the first return of the Interlocutory Process on 6 February 2026, I raised with counsel for the plaintiffs the question of the first plaintiff bringing the proceedings by her Attorney and whether she required a next friend to be appointed pursuant to O 70 of the Rules of the Supreme Court 1971 (WA) (Rules).
3. In supplementary submissions filed before the second hearing on 17 February 2026,[8] the plaintiffs contended that:
   1. the first plaintiff was not a person under a disability within the meaning of O 70 r 1; and
   2. by the terms of ss 102, 104 and 107 of the GA Act and s 84 of the Property Law Act 1969 (WA) (PL Act), the second plaintiff could bring the proceedings as his mother's Attorney.
4. The first defendant, on 17 February 2026, submitted that O 70 of the Rules was designed to ensure curial protection and supervision of the rights and interests of those who are not able to conduct their own litigation[9] and, in effect, the provisions of the GA Act and the PL Act did not give the Attorney power to commence proceedings here.[10]
5. The first defendant contended that the material before the Court, (including the MFIs), had put the Court on notice that the first plaintiff was incapable of managing these proceedings and that a declaration of incapacity should be made.[11]
6. The Court of Appeal has recently, in W v S [2025] WASCA 21 [47], adopted the summary of the relevant principles set out by Seaward J, as she then was, in Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 [89].
7. The following principles are, for present purposes, relevant, namely:

(f) when put on notice that a person may lack the capacity to manage their own affairs in the litigation, the court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence;

(g) Order 70 requires the court to consider whether the relevant person is, by reason of mental illness, defect or infirmity, however occasioned, incapable of managing their affairs in respect of the proceedings. There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs. It will fluctuate according to the legal character, complexity and significance of the relevant transaction (also known as an 'issue-specific' approach);

(h) the expression 'incapable of managing her own affairs' must be construed in a common-sense way as a whole. It does not call for proof of complete incapacity or (for example) proof that the party should be subjected to involuntary medical treatment under mental health legislation. A person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life. The expression involves a consideration of whether the person has sufficient mental capacity to understand the case and the legal issues involved, to make decisions in relation to the case and (if instructing a solicitor) to give instructions.[12]

1. The MFIs show that the first plaintiff had commenced the Family Court proceedings by a case guardian appointed by the Jones J Orders on 6 February 2026.[13]
2. Mr T (who was appointed the first plaintiff's case guardian in the Family Court by the Jones J Orders)[14] adduced in his affidavit[15] a report prepared by a specialist geriatrician dated 4 February 2026, in which the geriatrician concluded his assessment by saying:

In my opinion [the first plaintiff] lacks capacity to conduct Family Court litigation and would require a litigation guardian.

1. No one sought to suggest that the first plaintiff would be in any different position in these proceedings.
2. In his Family Court affidavit made a day after these proceedings were commenced,[16] the second plaintiff deposed to the effect that:
   1. he had read the geriatrician's report dated 4 February 2026;
   2. the geriatrician had 'confirmed' that the first plaintiff's cognitive function had deteriorated, and she was unable to conduct complex legal or financial affairs; and
   3. the first plaintiff had moderate dementia, which meant that on some days she had capacity and other days she did not.
3. Two issues emerged from the above. They were:
   1. whether the Originating Process and Interlocutory Process could be regularly commenced on behalf of the first plaintiff by her Attorney; and
   2. whether there was proper or appropriate disclosure of the first plaintiff's capacity by the plaintiffs on 6 and 17 February 2026.
4. In my view, it is plain on the material before the Court (including the MFIs) that the first plaintiff did not have the capacity to commence and then manage the proceedings in this Court on 4 February 2026.
5. Further, I consider, from those materials, it is plain that the first plaintiff is incapable of managing her affairs in respect of those proceedings.
6. I have reached the preliminary view that the proceedings could not be commenced by the first plaintiff's Attorney in the sense that the Power and the relevant statutory provisions relied upon did not give the Attorney that power. In the circumstances which are presently before me, however, I do not consider that I need to finally determine that question.
7. As seen above, despite the matter being raised with the plaintiffs' counsel on 6 February 2026, the plaintiffs at the beginning of the hearing on 17 February 2026 maintained the position that the second plaintiff, as Attorney for the first plaintiff, could regularly commence the proceedings on her behalf. That position changed during the course of the hearing on 17 February 2026 and the plaintiffs sought an adjournment, in part, to allow an application to be made for the appointment of a next friend.
8. On 23 February 2026, the plaintiffs filed:
   1. a minute of proposed orders which sought, relevantly, the following two orders:
      1. The first applicant be and is hereby declared a person under a disability pursuant to Order 70 rule 1 of the Rules of the Supreme Court 1971 (WA).
      2. Robert Walter Fahey Sceales be and is hereby appointed the first applicant's next friend for the purposes of these proceedings.
   2. an affidavit of Nathan Christopher Ebbs made and filed on 23 February 2026; and
   3. an affidavit of Robert Walter Fahey Sceales made on 20 February 2026 and filed on 23 February 2026.
9. The first defendant filed a second affidavit of Mr Dundas on 24 February 2026 which went to who should or could be appointed as the first plaintiff's next friend. Given the circumstances, I do not consider I need to consider that affidavit or proposal further.
10. In all of the circumstances, I consider it is appropriate to make the declaration sought that the first plaintiff is a person under a disability within the meaning of O 70 r 1 of the Rules.
11. I also considered it appropriate to appoint Mr Sceales as the first plaintiff's next friend.
12. I made those orders during the hearing on 25 February 2026.
13. Mr Sceales will immediately face a number of very considerable challenges it appears to me.
14. The first is that, on his evidence, so far the majority of his communication with the first plaintiff has been through the second plaintiff as her interpreter. Mr Sceales, obviously, will need to ensure that he is doing all that he reasonably needs to do as the next friend without being beholden to the non-independent interpretation of the second plaintiff.
15. Counsel for the plaintiffs told me on 25 February 2026 that Mr Sceales is very much alive to that necessity.
16. That is particularly important as there is the real question of the overlap, so far as the first plaintiff is concerned, between the proceedings in this Court and in the Family Court. In that respect, her interests may well be very different from those of the second plaintiff who, naturally enough, is not party to those proceedings in the Family Court.
17. That real potential for conflict may well make it difficult, if not inappropriate, for Mr Sceales to receive advice from the plaintiffs' present solicitors given that they are effectively instructed by the second plaintiff.
18. I am sure that Mr Sceales will give careful consideration to that matter now that he has been appointed.
19. Mr Sceales, as next friend, will also have to give careful thought to the provisions I identify below from the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) (Cross-vesting Act) as to whether an application should be made in either the Family Court or in this Court for the transfer of proceedings.
20. That is because it may well be that when the first plaintiff's position is separately considered (in light of her age, medical condition, status of her marriage and the very much wider powers, practices and jurisprudence in the Family Court, in looking 'through' trusts) that the first plaintiff's position may be very much better served in the Family Court than it is in Corporations Act proceedings in this Court.
21. I was told by counsel for the plaintiffs that Mr Sceales' initial position is, very sensibly I may say, one of enthusiasm for one determination of the matters in dispute between this Court and the Family Court.
22. Further, given my view is that the proceedings, at least on the part of the first plaintiff, were commenced irregularly, Mr Sceales will have to give consideration to whether to seek to regularise the position by an application and, in any event, Mr Sceales will have to consider whether to bring any fresh application given the Jones J Orders were made following material non-disclosures as set out below.

1. I have set out above the orders sought by the Interlocutory Process.
2. On the first return on 6 February 2026, the matter did not commence at the scheduled time so as to allow counsel for the parties to discuss, and ultimately agree, on some interim orders to preserve the position before a further hearing on 17 February 2026.
3. Ultimately, on 6 February 2026, I made orders in accordance with the plaintiffs' and first defendant's agreed orders.
4. I note from the transcript that although scheduled to start at 3.15 pm, Court convened at 4.31 pm and finished at 4.53 pm on that day.
5. As later became apparent, by the time Court convened and indeed before the scheduled start time, the Jones J Orders had already been made on 6 February 2026.[17] That was not brought to the Court's attention, nor to that of the first defendant on that afternoon.
6. Although the first defendant was the respondent to the Family Court proceedings, as I understand it, the Jones J Orders were obtained on an ex parte basis and were not brought to the first defendant's attention until after the hearing in this Court on 6 February 2026.
7. Further, the plaintiffs' solicitors received a copy of the Jones J Orders on the afternoon of 6 February 2026 before this Court convened at 4.31 pm.
8. The effect of Orders 4, 5 and 6 of the Jones J Orders[18] (when read with the defined terms included in the Form 1 - Initiating Application)[19] is that orders restraining all but perhaps two of the meetings (which were the subject of the orders I made on 6 February 2026) were in a very real sense unnecessary.
9. That raises at least three questions, namely:
   1. whether there is or was any utility in the orders sought in the Interlocutory Process given the Jones J Orders;
   2. whether the seeking of the orders in the Interlocutory Process and, to some degree, perhaps the relief sought in the Originating Process was an abuse of this Court's processes on the part of the first plaintiff, at least as they may be described as being vexatious or oppressive in the way analogously described by cases such as Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 591 (Dawson, Gaudron, McHugh & Gummow JJ); and
   3. whether there should have been disclosure to the Court and the first defendant of the Jones J Orders during the hearing on 6 February 2026, or whether the plaintiffs ought to have brought Jones J Orders to the attention of the Court and the first defendant closer in time to the making of the orders of this Court on 6 February 2026 (noting that the Court only became aware of these Orders after hours on 16 February 2026).
10. There may also be an issue as to whether it is more appropriate that the Originating Process, less insofar as it concerns the first plaintiff, be determined by the Family Court in the interests of justice within the meaning of s 5(4)(b)(ii) or (iii) of the Cross-vesting Act; and see also the conferral of jurisdiction by s 4(6) of that Act.
11. By an affidavit made and filed on 24 February 2026,[20] Mark Alan MacLennan, a principal of the plaintiffs' solicitors, sought to 'explain' why the Family Court proceedings and the Jones J Orders were not disclosed to the first defendant and to the Court on 6 February 2026.
12. Mr MacLennan deposed to becoming aware, before the matter was to be called in this Court, of the Jones J Orders.[21]
13. By no later than 30 January 2026, the plaintiffs' solicitors were aware of the proposed Family Court proceedings.[22]
14. Mr MacLennan deposed to not recalling whether he was aware of when the Family Court proceedings would be commenced, the terms of the Asset Freezing Orders or when the application might be heard.[23]
15. Nonetheless, from his evidence, about two hours before the scheduled commencement of the proceedings and some three hours before the Court convened on 6 February 2026, the plaintiffs' solicitors had a copy of the Form 1 - Initiating Application.[24]
16. The Form 1 - Initiating Application contained within it a minute of interim orders sought which were materially made by Jones J at the hearing, which I am told commenced at 2.15 pm on that same day.
17. Mr MacLennan deposed to reviewing the minute of interim orders and discussing them with Mr Tharby, who then acted as junior counsel to Mr Bennett at the hearing before me on 6 February 2026.[25]
18. Mr MacLennan deposed that he and Mr Tharby did not consider that the interim orders being sought in the Family Court would necessarily restrain the first defendant from voting at the scheduled general meetings.[26]
19. With respect, I consider they were wrong in reaching that view, at least as it concerned the defendants other than the tenth and fourteenth defendants. In any event, however, even if they held that view, it seems to me that it was a matter which ought to have been brought to the attention of the Court and the first defendant before Court commenced at 4.31 pm that afternoon.
20. The fact that there was a prospect that the Jones J Orders would restrain some or all of the meetings ought to have been enough to require disclosure.
21. That conclusion I have reached is reinforced by the language which Mr MacLennan used in his affidavit in which it is said that the interim orders 'did not necessarily' restrain the general meetings sought by the Interlocutory Process.[27] Clearly, on Mr MacLennan's affidavit, there was a question in his and Mr Tharby's mind as to the scope and effect of the orders which were being sought in the Family Court and so they are matters which ought to have been disclosed.
22. As said, the plaintiffs' solicitors became aware from the second plaintiff before 3.15 pm that interim orders had been made in the Family Court.
23. Mr MacLennan did not depose to what he knew of the terms of the interim orders and, on his evidence, it appears no questions were asked of the second plaintiff at that time. That seems, with respect, surprising.
24. In my view, it is plain that the second plaintiff should have brought the Jones J Orders to the attention of this Court and to the first defendant earlier on 6 February 2026. And if it is the case that the plaintiffs' solicitors did not make any inquiries of the second plaintiff on being told that the Family Court had made interim orders, then they, with respect, ought to have been more curious.
25. Clearly, on the papers filed in this Court and on the MFIs, it is apparent that the second plaintiff has been the prime actor in both sets of proceedings. The second plaintiff in his affidavit in the Family Court[28] referred to the proceedings in this Court and, indeed, annexed his first affidavit in this Court to his Family Court affidavit.
26. I find that the second plaintiff, at the time of commencing proceedings in this Court on 4 February 2026, knew that proceedings would be commenced the next day in the Family Court, and that orders would be sought for the appointment of a case guardian for the first plaintiff. I find, also, that prior to commencing the proceedings in this Court, the second plaintiff would have been aware of the interim orders being sought in the Family Court.
27. Further, I find that the second plaintiff, either at the time of commencing proceedings in this Court or on the same day as commencing such proceedings, was aware of the geriatrician's opinion as to the first plaintiff's capacity.
28. I consider that the second plaintiff should have brought each of those matters to the attention of both the Court and the first defendant by no later than the commencement of the hearing before this Court on 6 February 2026.
29. In the ordinary course, given the significance of the applications in this Court and in the Family Court, I would expect that the solicitors taking their instructions from the second plaintiff in both proceedings would have had some degree of information-sharing and co-ordination at the very least. And, as noted, the solicitors for the plaintiffs were aware by the time the matter was called in this Court on 6 February 2026 that Jones J had made orders in the Family Court.
30. Mr MacLennan deposed that he did not further consider whether the Jones J Orders might restrain the first defendant from voting at the general meetings until the morning of Monday, 9 February 2026.[29] The plaintiffs' solicitors, notwithstanding that, did not bring those matters to the attention of this Court until their after-hours communication on 16 February 2026.
31. As I understood counsel for the plaintiffs to accept, the plaintiffs' lawyers should have at the latest brought the Jones J Orders to the Court's attention on 9 February 2026.
32. Counsel for the plaintiffs submitted, maybe by way of an attempt at mitigation, that the first defendant's solicitors were aware by 9 February 2026 and could have raised the matter with the Court at that time if they considered it necessary or appropriate.
33. I consider that the obligation was on the plaintiffs' solicitors to disclose those matters and remained on them to do so.
34. I consider that there are matters which may well require further investigation by the appropriate regulator arising out of these events. I do not consider that this Court should, at this stage, seek to conduct those inquiries.
35. At the very least, the non-disclosure to this Court and the first defendant, the Jones J Orders and the commencement of the proceedings in the Family Court were matters of material non‑disclosure.
36. Counsel for the plaintiffs, on 17 February 2026, appeared to accept that there had been such non-disclosure, but submitted that the plaintiffs were seeking 'fresh orders' following the making of the disclosure.[30] That appeared to be the position adopted on 25 February 2026 as well.
37. In Entyr Ltd formerly known as Pearl Global Ltd v Eastman [2023] WASC 469, I considered the principles which are applicable where orders have been obtained from the Court on the basis of material non‑disclosure. I have not repeated that analysis here.
38. The plaintiffs, by submissions filed on 24 February 2026, submitted that, in effect, there is sufficient divergence between the relief sought in this Court by the Interlocutory Process and by the Jones J Orders such that both sets of orders could stand.
39. With respect, those submissions made by the plaintiffs substantially elide the relief sought in the Originating Process with that sought in the Interlocutory Process rather than contrasting the Interlocutory Process with the Jones J Orders.
40. Over the course of argument on 25 February 2026, much of the position adopted by the plaintiffs fell away when the shareholdings of the corporate defendants were subjected to basic analysis. That is, if the first defendant cannot vote his shareholdings by reason of the Jones J Orders, which seem to be accepted, then the plaintiffs have a majority of the voting shares in all but the tenth and fourteenth defendants if the meetings which were sought to be restrained went ahead.
41. I went through the shareholdings and entitlements to vote for each of the fourth to fifteenth defendants with counsel for the plaintiffs and he accepted, as I understand it, that proposition for each of the defendants with the exception of the tenth and fourteenth defendant.[31]
42. There may yet be a question of whether meetings of the tenth and fourteenth defendant could proceed but I have proceeded for these purposes on the basis that they may, notwithstanding the Jones J Orders.
43. The plaintiffs sought to amend the relief sought by the Interlocutory Process at close to the conclusion of the oral argument on 25 February 2026.
44. I will come to those amendments proposed, but the consequence of the amendments made by the plaintiffs is that there was then no relief sought against the first defendant.
45. Counsel for the first defendant did not then strictly oppose the orders sought by the amendments proposed to the Interlocutory Process or to the minute of orders as sought to be amended.
46. That leaves the position of the tenth and fourteenth defendant to be considered.
47. Currently, as I understand the directorships of the fourteenth defendant, the plaintiffs are three of the four directors if one takes the position of the second plaintiff's brother to be aligned with the first and second plaintiffs. If that is correct, as I understand it to be, then currently the fourteenth defendant is effectively under the control of interests associated with the plaintiffs and not the first defendant.
48. In terms of the shareholdings, as I understand it, there are 1,075 shares and the first and second plaintiffs hold between them 250 shares. The eleventh defendant holds 500 shares.
49. If one turns to the position of the eleventh defendant, two of three of its directors are either the second plaintiff or aligned with the plaintiffs. The majority of the shares are held by the first defendant but the first defendant, on the basis of the Jones J Orders, is not able to vote his shares to change the directors.
50. So on that analysis, the fourteenth defendant may, I think for these purposes, be seen to be effectively under the control of interests associated with the plaintiffs.
51. I note that the second plaintiff is a shareholder of the fourteenth defendant which I assume has the effect that, at least on this limited basis, this part of the proceeding was regularly commenced. Nonetheless, there appears to be no utility in making the orders sought by the plaintiffs in respect of the fourteenth defendant.
52. Turning to the tenth defendant, as I understand the position currently, three of the five directors are either the plaintiffs or aligned with the plaintiffs and the remaining two directors are the first and third defendant. Because of the Jones J Orders, the first defendant could not do any of the things sought to be restrained in this Court and so only one of the five directors might be able, if acting alone, to do any of the matters sought to be restrained in the minute of proposed orders of 4 February 2026, as amended.
53. I note that the second plaintiff is not a shareholder in the tenth defendant and so would have no standing in the underlying proceedings in the Originating Process. The only basis then to grant the relief sought would be in favour, effectively, of the first plaintiff where the proceedings have been commenced irregularly and where Mr Sceales, understandably, will need time to consider the first plaintiff's position.
54. I was told from the bar table on 25 February 2026, and accept, that Mr Sceales is in favour of the status quo being maintained for the time being. I perfectly understand that position.
55. In terms of the shareholders of the tenth defendant, on the basis of the Jones J Orders, as is accepted, the first defendant cannot vote his shares, but the second and third defendants do have a majority of shares over those of the first plaintiff.
56. The first defendant could not, without breaching orders 4(d), 5(c)(i), and 6 of the Jones J Orders, seek to influence, cause, request, encourage or procure the second and third defendants from voting in favour of the resolutions. Nonetheless, I accept that it may be later difficult to understand whether the first defendant had complied with that. I mean no disrespect to the first plaintiff in saying that, but all of the material before the Court suggests that the first defendant is very much the patriarch of this family and it may be that it is difficult later to ascertain the motivations for the second and third defendants if they were to vote at a meeting of the tenth defendant.
57. If I turn to the resolutions proposed for the tenth defendant, they seek to remove the plaintiffs and the brother director aligned with the plaintiffs and to appoint the first plaintiff's and first defendant's granddaughter and an in-house accountant as directors.
58. I accept, as counsel for the first defendant submitted, that there is a question as to whether the first plaintiff should or can remain as a director given her capacity. I also accept that, at the moment, there is no prejudice asserted by anyone who would be restrained.
59. I accept that the second and third defendants have been served, or at least have had these proceedings brought to their attention and have decided for whatever reason not to appear or participate.
60. Notwithstanding what appears to be a very contentious family situation, I would not readily imagine that the granddaughter and in‑house accountant who are sought to be appointed would not be aware that their actions, if appointed, would be the subject of close scrutiny.
61. Nonetheless, on balance, I consider that there is enough evidence to suggest that there is a sufficient question to be tried about the conduct of the tenth defendant's affairs, and I intend to make an order in terms of Order 1 of the Interlocutory Process to restrain the tenth respondent and grant an injunction to restrain the tenth defendant from conducting the general meeting of the tenth defendant.
62. Principally, notwithstanding that I consider the proceedings have been irregularly commenced and, notwithstanding that the second plaintiff chose to proceed from 4 February 2026 including on 6 and 17 February 2026 without seeking the appointment of a next friend, Mr Sceales was only appointed during the hearing on 25 February 2026. I consider it appropriate that he have time to review the position.
63. That brings me then to the amended minute of proposed orders. As things stand, I am not persuaded that there is evidence before the Court which suggests that any of the corporate defendants intend to act in a way that is sought to be restrained by the plaintiffs. I do not then intend to make orders in terms of Order 3 or 4 as was sought to be amended by the plaintiffs at the hearing on 25 February 2026.
64. As to the first defendant's minute of 17 February 2026 which, by the second order, sought a stay of these proceedings, I consider that without prejudice to the first defendant's ability to agitate that matter further I will not make an order staying the proceedings at the present time, pending Mr Sceales' review of the first plaintiff's position.

1. For those reasons, I will make an order which reads: the tenth defendant be restrained, and an injunction be granted restraining the tenth defendant from conducting the general meeting convened at the request of the first defendant scheduled to be held on 9 February 2026 pursuant to s 233(i) of the Corporations Act, and restraining the second and third defendants from causing such meetings to be convened or resolutions approved until further order of the Court.
2. I otherwise dismiss the Interlocutory Process filed on 4 February 2026 and would not make orders in terms of the plaintiffs' minute of proposed orders filed on 4 February 2026, as sought to be amended.

1. After delivering the above reasons, the first defendant applied for his costs of the application on an indemnity basis.
2. Subject to the final form of the wording, I indicated that I would make orders to the effect that:
   1. the second plaintiff should pay the first plaintiff's costs of the application save as unreasonably incurred;
   2. the second plaintiff should not have recourse to the assets of the first plaintiff in meeting those costs orders; and
   3. those costs orders are not to apply to the second affidavit of Mr Dundas nor the work associated with its being made. That is, the first defendant should not have any costs of that affidavit or that work.
3. On 17 February 2026, I made orders that the plaintiffs should pay the first defendant's costs of 17 February 2026 and any costs thrown away by reason of the adjournment in any event on an indemnity basis save as were unreasonably incurred to be taxed if not agreed.
4. Obviously enough, the costs order I made on 17 February 2026 and costs orders I will make following these reasons are not intended to allow the first defendant any 'double recovery'.
5. I intend to make the costs order in [126(1)] above as very late in the piece (only towards the end of the plaintiff's submissions), the plaintiffs abandoned the seeking of any relief against the first defendant.
6. With respect, given that the Family Court orders are in place and it is common ground that they prevent the first defendant from voting his shares at any of the meetings sought to be restrained, there would have been no utility in restraining the meetings of any of the corporate defendants, with the exception of the tenth and fourteenth defendants.
7. That inutility was or should have been, again with respect, obvious (and accepted by the plaintiffs' counsel as such) when one compared the number of shares and voting entitlements across the corporate defendants and took into account the Jones J Orders.
8. That is, ultimately, the plaintiffs did not seek relief against the first defendant in circumstances where the orders made by the Family Court meant that it was unnecessary to seek relief against the first defendant, and that should have been obvious earlier.
9. While it is the case that the plaintiffs had very limited success in their application to restrain the meeting of the tenth defendant, that was not relief contested by the first defendant.
10. I have excluded the second affidavit of Mr Dundas and the work captured by it from the costs orders I intend to make because I consider, with respect, that it was unrealistic for the first defendant to seek to propose a next friend for his wife.
11. I say that because the plaintiffs' material is full of very serious allegations against the first defendant which impugn his conduct both commercially and domestically.
12. At the very least, it must have been apparent to the first defendant and his representatives that any next friend suggested or moved for by the first defendant would be regarded with suspicion and that person would not start with any trust or confidence from the first plaintiff.
13. In those circumstances, I consider that the second affidavit of Mr Dundas and the work it encapsulated was unrealistic and the costs of it should not be borne by the plaintiffs.
14. The order I propose to make as to the second plaintiff not having access to the assets of the first plaintiff in meeting any costs order reflects my concern that, as the prime actor, so far, in both the Family Court and this Court's proceedings, the second plaintiff, whether with or without advice, has not:
    1. understood his obligations to this Court; nor
    2. the position of conflict which seems likely to arise between his position and that of his mother's in these proceedings.
15. Further, with or without advice, the second plaintiff has not taken steps to protect against that real possibility of conflict.
16. In those circumstances, I consider it appropriate in the Court's parens jurisdiction to make plain that the second plaintiff is to bear those costs personally.

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

[1] These became 'MFI-1' and 'MFI-2' and are discussed below.

[2] These became 'MFI-3' and 'MFI-4' and are discussed below.

[3] Mr T was appointed as the first plaintiff's case guardian by the Jones J Orders.

[4] Second plaintiff's first affidavit, Attachment 'KXT-01' at page 57.

[5] Second plaintiff's first affidavit [2] and Attachment 'KXT-01' at pages 46 - 59.

[6] Second plaintiff's first affidavit [3].

[7] Second plaintiff's first affidavit [128].

[8] Plaintiff's submissions filed on 11 February 2026.

[9] First defendant's submissions filed on 16 February 2026 [11].

[10] First defendant's submissions filed on 16 February 2026 [11].

[11] First defendant's submissions filed on 16 February 2026 [14] and [15].

[12] W v S [2025] WASCA 21 [47] (Mitchell & Vaughan JJA).

[13] Orders made by Jones J: 'MFI‑2' Orders 1 ‑ 3.

[20] Affidavit of Mark Alan MacLennan made and filed on 24 February 2026 (MacLennan affidavit).

[24] 'MFI-1'; MacLennan affidavit [8].