THE PROIMMUNE COMPANY, LLC -v- HOLISTA COLLTECH LIMITED [2026] WASC 112 (7 April 2026)

When foreign judgments will be enforced in Australia

1. Given that these proceedings concern the enforcement of a foreign judgment, it is useful to begin by considering the circumstances in which foreign judgments can be enforced in Australia.
2. Foreign judgments obtained in some jurisdictions may be enforced under the Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act). Otherwise, foreign judgments must be enforced at common law. Judgments obtained in the United States are not enforceable under the Foreign Judgments Act and must therefore be enforced at common law.[4]
3. The common law requirements for the recognition and enforcement of a foreign judgment are as follows:

(a) the foreign court must have exercised jurisdiction of the requisite type over the defendant (also known as jurisdiction 'in the international sense');

(b) the judgment must be final and conclusive;

(c) there must be identity of parties between the judgment debtors and the defendants in any enforcement action; and

(d) the judgment must be for a fixed, liquidated sum.[5]

1. The onus rests on the party seeking to enforce the foreign judgment to establish these four requirements.[6] Once they are established, however, the judgment is prima facie enforceable as a valid obligation unless the defendant can establish one or more of the recognised defences.[7]
2. Subject to certain exceptions (including fraud), it is not open to a defendant to challenge the merits of the foreign judgment.[8] A plaintiff seeking to enforce a foreign court's judgment can rely on the judgment as creating an estoppel precluding the defendant from raising any defence which was, or could have been, raised in the foreign proceedings.[9]
3. The defences include that:

(a) the judgment was obtained by fraud;

(b) the foreign judgment is contrary to public policy;

(c) the foreign court acted contrary to natural justice;

(d) the foreign judgment is penal or a judgment for a revenue debt;

(e) the foreign court acted perversely in refusing to apply the appropriate law; and

(f) the party seeking enforcement or recognition is estopped by a prior judgment of the forum.[10]

1. The plaintiff has applied for summary judgment pursuant to O 14 r 1 and O 14 r 3 of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court).
2. Order 14 r 2 of the Rules of the Supreme Court provides that an application under O 14 r 1 shall be made by summons supported by an affidavit verifying the facts on which the claim to which the application relates is based, and stating that in the deponent's belief there is no defence to that claim.
3. The principles to be applied in determining an application for summary judgment are well established and were not the subject of dispute before me. They were summarised by the Court of Appeal in Zaghloul v Bayly[11] as follows:[12]

The principles to be applied on an application for summary judgment are well established. The critical issue is whether it is clear that there is no real question to be tried. The issue is framed in this manner as it is only in the clearest of cases, where there is a high degree of certainty about the outcome if the proceedings were allowed to go to trial, that summary judgment ought properly to be granted. The exercise of powers to summarily terminate proceedings must always be attended with caution.

There are cases where the court has considered it appropriate to determine questions of law on a summary judgment application. There should be summary judgment if the facts are undisputed and the law is clear. In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument. It will usually be appropriate to leave the determination of such questions for trial.

(footnotes omitted)

The claims made by the plaintiff in these proceedings

1. The claims made by the plaintiff in these proceedings, are set out in the plaintiff's statement of claim, and are as follows.
2. Between March 2015 and September 2018, the plaintiff and the defendant entered into the four Distribution Agreements, of which the following three are relevant:

(a) a first distribution agreement entered into between the plaintiff and the defendant on 16 March 2015 (the First Contract);

(b) a second distribution agreement entered into between the plaintiff and the defendant on 2 June 2016 (the Second Contract); and

(c) a fourth distribution agreement entered into between the plaintiff and the defendant on 1 September 2018 (the Fourth Contract).[13]

1. Pursuant to each of the Distribution Agreements, the defendant agreed to meet minimum performance requirements in relation to the purchase of Immune Formulation 200® (Formulation 200), as specified in the Distribution Agreements.[14]
2. On 13 February 2020, the plaintiff commenced the US Proceedings in the US District Court, alleging that the defendant had breached the First, Second and Fourth Contracts by not meeting the minimum performance requirements under the Distribution Agreements.[15]
3. By its answer, initially filed in the US Proceedings on 9 July 2020, and subsequently amended twice on 13 August 2020 and 14 October 2020 respectively, the defendant raised eight affirmative defences and brought three counterclaims against the plaintiff for alleged breach of contract and breach of express warranties under the Fourth Contract.[16]
4. After the close of discovery in the US Proceedings, both the plaintiff and the defendant filed motions for summary judgment.[17]
5. By an opinion and order on 21 March 2022 (First Summary Judgment Opinion), the US District Court granted the plaintiff's motion for summary judgment and denied the defendant's motion for summary judgment, finding that there was no genuine dispute of material fact that:

(a) the defendant breached the First, Second and Fourth Contracts by failing to meet its minimum performance requirements under those contracts; and

(b) the plaintiff did not waive compliance with the minimum performance requirements.[18]

1. In the First Summary Judgment Opinion, the US District Court deferred ruling on the damages owed to the plaintiff pending the filing by the parties of submissions on two questions identified by the Court, namely:

(a) whether the Fourth Contract remained ongoing; and

(b) whether the plaintiff was subject to a duty to mitigate.[19]

1. By a further opinion and order on 30 January 2023, the US District Court affirmed its ruling on the plaintiff's motion for summary judgment, held that the plaintiff was entitled to damages under the First, Second and Fourth Contracts, and awarded the plaintiff damages in the total amount of US$1,198,150.[20]
2. On 5 July 2023, the US District Court:

(a) granted the plaintiff pre-judgment interest of 9% on the award of damages in respect of each of the Distribution Agreements, in the aggregate of US$668,973.55;

(b) found that the plaintiff was entitled to attorney's fees under the Fourth Contract; and

(c) directed the parties to submit supplemental briefing regarding the calculation of reasonable attorney's fees.[21]

1. By order on 4 January 2024, the US District Court awarded the plaintiff attorney's fees in the amount of US$196,017.50.[22]
2. Upon entry of the US District Court Judgment, the amount of the judgment was, and is, a debt due and payable by the defendant to the plaintiff.[23]
3. On 5 December 2023, the defendant appealed to the US Court of Appeals on the ground that the US District Court erred in granting summary judgment to the plaintiff.[24]
4. On 20 February 2025, the US Court of Appeals:

(a) reviewed the US District Court's grant of summary judgment de novo and found no error;

(b) considered the defendant's arguments and concluded that they were without merit; and

(c) ordered, adjudged and decreed that the US District Court Judgment be affirmed.[25]

1. The defendant has not complied with the US District Court Judgment or paid any part of the judgment debt to the plaintiff.[26]
2. The plaintiff is entitled to claim post-judgment interest on the US District Court Judgment debt, pursuant to Title 28 U.S.C s 1961(a), at the rate of 4.81% per annum from 23 January 2024 to the date of payment, computed daily until the date of payment, and compounded annually.[27]
3. The plaintiff has filed an Affidavit of Ryan Benjamin Abbott sworn 15 October 2025 in support of its application for summary judgment. Mr Abbott is an attorney who is the lead counsel for the plaintiff in the US Proceedings. In his affidavit, Mr Abbott verifies the facts upon which the plaintiff's claim is based. Those facts did not seem to be the subject of any real dispute.

1. As I have mentioned, the defendant seeks to resist the entry of summary judgment on the basis that its Misleading or Deceptive Conduct Claim, and the evidence that it relies upon, establish that it has an arguable defence of equitable set-off.
2. An understanding of the submissions made by the parties is aided by an understanding of the allegations made in the statement of claim filed in the Misleading and Deceptive Conduct Claim, the evidence relied upon by the defendant in these proceedings to substantiate those claims, and the amendments that were subsequently made to that statement of claim.

The statement of claim in the Misleading and Deceptive Conduct Claim

1. The Misleading and Deceptive Conduct Claim was commenced by a writ indorsed with a statement of claim. The statement of claim alleged that before the defendant entered into the Distribution Agreements, the plaintiff represented to the defendant that:

(a) the plaintiff held patent RE42,645 E for physiologically synthesised glutathione, and the patent was registered by trademark 'Immune Formulation 200®';

(b) Formulation 200 contained, as essential active ingredients, a catalytic quantity of a selenium source together with a glutathione precursor (which is a mixture of glutamic acid, cystine and glycine);

(c) Formulation 200 was covered by patent RE42,645 E, being the patented composition of amino acids to increase bodily glutathione levels through increased intracellular synthesis of glutathione;

(d) Formulation 200 could be used for immune enhancement;

(e) Formulation 200 had an enlarged patent issued on 23 August 2011; and

(f) patent RE42,645 E was valued at US$1.2 billion.[28]

1. In relation to the First and Second Contracts, these representations were alleged to have been made in four emails sent between 7 December 2014 and 2 January 2015.[29] In relation to the Second Contract, the defendant relied upon the addition of a fifth email dated 16 May 2016.[30]
2. The statement of claim also alleged that the plaintiff did not disclose that:

(a) in 2006, the United States Patent Office (USPO) had advised that Formulation 200 did not represent a new or novel invention worthy of patent protection, and by staying silent about this fact conveyed the representation that Formulation 200 was protected by a patent. Reference was made to a rejection notification letter from the US Patent examiner dated 6 January 2006;[31] and

(b) it had withdrawn its initial patent application which included claims described as 'Claims 1 to 12', and that the reissued patent RE42,645 E did not include 'Claims 1 to 12' and only contained 'Claims 13 to 29'.[32]

1. The statement of claim alleged that the plaintiff also made representations in each of the Distribution Agreements. In relation to all three agreements, it was alleged that the agreement represented that:

(a) all literature and information supplied by the plaintiff in relation to Formulation 200 was true, complete and accurate in every respect (cl 9.1.2);

(b) the plaintiff had not withheld or omitted to disclose to the defendant any material information relating to Formulation 200 (cl 9.1.3); and

(c) the plaintiff had full legal right to use, and to authorise the use of, Formulation 200 and all other related intellectual property to Formulation 200, and had disclosed to the defendant all trade names, trademarks, and other related intellectual property used by the plaintiff in relation to Formulation 200 as at the date of the date of the First Contract (cl 10.1).[33]

1. In relation to the Third Contract, the statement of claim alleged that that contract represented that Formulation 200 could be supplied in accordance with AOAC973.03 with at least 90% through 40 mesh and (a) the defendant would not have executed each of the agreements;

(b) the defendant would have purchased a product equivalent to Formulation 200 from an alternative supplier at a significantly cheaper price;

(c) the defendant would have purchased a product equivalent to Formulation 200 which satisfied its sizing requirements;

(d) the defendant would not have become bound by the other terms contained within the Third Contract, including the terms relating to minimum monthly performance requirements; and

(e) the defendant would not have become a defendant to the US Proceedings and the US District Court Judgment.[39]

1. The statement of claim alleges that the defendant first discovered the falsity of the representations in or about November 2022. It is alleged that in November 2022, Dr Laura Lile, a director of Three Aminos LLC (Three Aminos) notified Dr M Rajendran V Marnickavasagar, a former director and chief executive officer of the defendant, that the plaintiff did not hold the patent to Formulation 200, by reason that 'Claims 1 to 12' had been abandoned in the reissued patent RE42, 645 E.[40]

1. In opposition to the summary judgment application, the defendant relied on two affidavits of Dr Marnickavasagar. The first affidavit was sworn on 11 August 2025 and the second on 9 September 2025 (the Second Marnickavasagar Affidavit).
2. Dr Marnickavasagar attached a copy of the statement of claim to the Second Marnickavasagar Affidavit as annexure 'RM-1'. In paragraph 7 of that affidavit, he referred to the statement of claim and 'confirms that its contents and true and correct, including that each of the representations that are identified therein were made by the defendants' to him at the times alleged.
3. He deposed to receiving various emails from the plaintiff on 7 December 2014.[41] These included emails referred to in the statement of claim.[42]
4. Dr Marnickavasagar then said that in addition to reading these emails, he searched the internet to gain, to the extent that he could from public searches, as much information as he could on the defendant and Dr Crum. He deposed that he no longer had details of those searches.[43]
5. Dr Marnickavasagar deposed to various matters that he became aware of because of the emails he received on 7 December 2014, his internet searches, and his knowledge as a pharmacist trained in holistic medicine.[44]
6. One of the matters referred to by Dr Marnickavasagar was that the plaintiff held a patented formula which was a blend of selenium and amino acids that facilitated intracellular glutathione synthesis. He said that he 'understood from [patent RE42,645 E]' that it represented claims 1 to 29 and he referred to a copy of the patent attached to his affidavit.[45] He said that the patent protection was confirmed by another document that he attaches to his affidavit.[46]
7. Dr Marnickavasagar said that he was aware that having a patent would be of great marketing value.[47]
8. Dr Marnickavasagar said that patent RE42,645 E had 29 claims and was very broad, and included 'Claims l to 12' which provided a unique and specific ratio of selenium and amino acids. He said that he understood at the time that this made patent RE42,645 E unique as this ratio represented new knowledge that was novel. He said that without this ratio there was nothing to protect because mixing the three amino acids with selenium catalyst was already known and not novel.[48]
9. Dr Marnickavasagar said that the fact that the unique and specific ratio of amino acids was protected by patent RE42,645 E meant there could be a whole pipeline of future products using the patent's uniqueness, including toothpaste, cosmetics and test kits.[49]
10. Dr Marnickavasagar said that he read a valuation of the plaintiff prepared by Charles Boundin. He said the valuation was significantly discounted which he understood to mean that 'there was future upside' in the plaintiff. [50]
11. Dr Marnickavasagar thought that the fact that there was a patent was important because he knew one was difficult to obtain.[51]
12. Dr Marnickavasagar said that his understanding from the emails that he received was that the way patent RE42,645 E protected the combining of those amino acids was where the value was, because whilst standard amino acids were able to be purchased cheaply from China, what was unique with Formulation 200 was the formulation within which the amino acids and selenium was blended.[52]
13. Dr Marnickavasagar then referred to a further email that he received on 24 December 2014.[53] This is also referred to in the statement of claim.[54]
14. Dr Marnickavasagar said that the email set out the history of patent RE42,645 E and its various enlargements to ultimately include claims 22 to 25. He said that when he read the email, he understood it to mean that the foundation Claims 1 to 12 had been approved within the patent and that these new claims would expand the scope of the existing patent protection. He said that because of his background and knowledge of emerging sciences he understood there had to be something unique or novel to obtain the protection of a patent.[55]
15. Dr Marnickavasagar said that Dr Crum was copied in on the email that he received on 24 December 2014 and he did not tell him that it was incorrect.[56]
16. Dr Marnickavasagar then referred to another email that he received from Dr Crum on 2 January 2015.[57] This is the last of the emails referred to in the statement of claim.[58]
17. Dr Marnickavasagar referred to an article attached to that email titled 'USPTO Issues Pleiotropic Paradox Glutathione Patent'. He said that the reference to the USPO in the title impressed him because it implied that patent RE42,645 E had been granted. He also referred to some of the contents of the article.[59]
18. Dr Marnickavasagar refers to speaking to Dr Crum on 3 January 2015. He then sets out the effect of what Dr Crum told him.[60]
19. Dr Marnickavasagar then refers to emails that he received from the defendant on 23 January 2015[61]and 4 February 2015,[62] and several other calls he had with Dr Crum.[63]
20. Dr Marnickavasagar then sets out various matters that he understood from the effect of all of his communications with the defendant.[64]
21. Dr Marnickavasagar deposes to being provided with a draft of the First Contract and noting that the plaintiff warranted that:

(a) all literature and information supplied by the plaintiff in relation to Formulation 200 was true, complete and accurate in every respect (cl 9.1.2);

(b) the plaintiff had not withheld or omitted to disclose to the defendant any material information relating to Formulation 200 (cl 9.1.3); and

(c) the plaintiff had full legal right to use, and to authorise the use of, Formulation 200 and all other related intellectual property to it, and had disclosed to the defendant all trade names, trademarks, and other related intellectual property used by the plaintiff in relation to Formulation 200 as at the date of the date of the First Contract (cl 10.1).[65]

1. Dr Marnickavasagar said that when he signed the First Contract, he thought that those warranties were true and he therefore did not undertake any searches.[66] He said if the agreement had not included those warranties, he would have undertaken due diligence.[67]
2. Dr Marnickavasagar then addressed the signing of the subsequent agreements and the institution of the US Proceedings.[68]
3. Dr Marnickavasagar said that in or about November 2022 he received a phone call from Mr Bhushan (the lawyer who acted for him in the US Proceedings) who told him that he had been told by lawyers acting for Three Aminos, that Three Aminos had been sued by the plaintiff and had counter-claimed alleging the plaintiff had misrepresented the scope of the patent that protected Formulation 200.[69]
4. Dr Marnickavasagar said that Mr Bhushan told him that based on what he had been told by Three Aminos, the plaintiff did not hold the patent to Formulation 200 in the terms described in the Distribution Agreements. He said that Mr Bhushan said in effect that 'Claims 1 to 12' which had been included in the application for patent 6.592 had been abandoned in the reissued patent RE42,645 E.[70]
5. Dr Marnickavasagar said that the defendant was unable to raise the matter in the US Proceedings because of the First Summary Judgement Opinion. He said that the plaintiff was also unable to commence fresh proceedings in relation to the misrepresentations about the scope of the patent and all the 'fraudulent misrepresentations' around it.[71]
6. Dr Marnickavasagar said that in November 2023, he had a telephone conversation with Mr Bhushan during which he said that Three Aminos had appointed him as its lawyer, and that based on his review of the materials, the Formulation 200 that the defendant was purchasing under the Distribution Agreements did not have the patent protection as claimed and warranted by the agreements.[72]
7. Dr Marnickavasagar said that Mr Bhushan then arranged for a call with Dr Lile. He said that during that call Dr Lile told him that she was a dual-credentialed physician and clinical pharmacist. He said that she explained to him the specific details of how the actual had been misrepresented, and the scope of the plaintiff's patent was of little commercial value as the most important claims (Claims 1 to 12) had been irrevocably rejected by the USPO, and that the remaining claims made by the plaintiff were practically useless in terms of:

(a) the lack of novelty (new and not previously disclosed);

(b) no inventive step (non-obvious to a skilled person); and

(c) minimum industrial applicability (usable in industry).[73]

1. Dr Marnickavasagar said Mr Bhushan later restated his advice that the plaintiff was precluded from either raising the misrepresentation in the US Proceedings, or commencing fresh proceedings concerning them. [74]
2. Dr Marnickavasagar referred to the defendant's unsuccessful appeal. He said that after the appeal was dismissed, Mr Bhushan said that no further appeal was available and that there was nothing further that could be done to raise the misrepresentations.[75]

The defendant's subsequent amendments to its statement of claim

1. On 6 October 2025, after the Second Marnickavasagar Affidavit was sworn, the defendant amended its statement of claim filed in the Misleading and Deceptive Conduct Claim. The amendments made included amendments to the paragraphs of the statement of claim that pleaded the written representations that were made in the emails sent.
2. The representation that Formulation 200 was covered by patent was amended as follows:[76]

Formulation 200 was covered by patents US 6,592,908B1, RE35,734 E and RE42,645 E, being the patented composition of amino acids (being a mixture of glutamic acid, cystine and glycine) to increase bodily Glutathione levels through increased intracellular synthesis of Glutathione

1. The amended statement of claim was also amended to allege that the following additional representations were made:

(a) the USPO in granting patent RE42,645 E had granted an enlargement of the plaintiff's patent;

(b) patent RE42,645 E extended to the entire physiological synthesis pathway of the glutathione molecule and all possible derivatives;

(c) patent RE 42,645 E was issued by the USPO without limitations of ratios of its amino acids ingredients (being a mixture of glutamic acid, cystine and glycine), and by reason of that, patent RE42,645E embraced all possible formulations and all permutations and computations of the formulation were open to the plaintiff;

(d) as a result of the patent enlargement on 23 August 2011, patent RE42,645 E was even more valuable than a valuation performed by Charles, Boudin & Company LLP in 2003 of between US$1.8 billion and US$5.7 billion with a conservative valuation of approximately US$2 billion; and

(e) Formulation 200 was manufactured using a molar ratio of 1:1:1 (being the proportional mixture of glutamic acid, cystine and glycine) and that molar ratio was protected by patents RE35,734 E and RE42,645 E.[77]

1. Reliance was placed on five more emails.[78]
2. The amended statement of claim amended the allegation that the USPO had advised that Formulation 200 did not represent a new or novel invention worthy of patent protection as follows:[79]

did not disclose that the United States Patent Office in 2006 had rejected the broader Group II claims in RE 39,734 E, including those directed to a 1:1:1 ratio corresponding to advised that Formulation 200 on the grounds that they were overly broad and not novel, did not represent a new or novel invention worthy of patent protection, and by staying silent about this fact and subsequently re-filing and later cancelling the same 1:1:1 claims in the second reissue (RE 42,645 E), conveyed the representation that Formulation 200 was protected by valid a patent rights;

1. It was still alleged that this representation was made in the USPO rejection notification dated 6 January 2006.[80]
2. The allegation that the plaintiff had withdrawn its initial patent application which included claims described as 'Claims 1 to 12', and that the reissued patent RE42,645 E did not include 'Claims 1 to 12' and only contained 'Claims 13 to 29' was removed.
3. The amended statement of claim introduced a new plea that the plaintiff did not disclose to the defendant that:

(a) the USPO when considering the grant of under RE 35,734 had issued the plaintiff with a letter dated 6 January 2006 rejecting its claims for patent protection of a molar ratio of 1:1:1 (being the composition of mixture of glutamic acid, cystine and glycine);

(b) the plaintiff had attempted to reintroduce in the patent application lodged for RE 62,645 E a claim for molar ratio of 1:1:1 (being the composition of the mixture of glutamic acid, cystine and glycine), and those claims were abandoned by the plaintiff prior to the issuance of the RE 42,645 E Patent;

(c) Formulation 200 did not have any patent protection for a molar ratio of 1:1:1 (being the composition of the mixture of glutamic acid, cystine and glycine);

(d) granting of RE 42,645 E without the limitation of ratios meant that the patent RE 42,645 E was limited to compositions consisting of glutamic acid, cystine, glycine, and selenium and did not extend to the entire physiological pathway and all possible derivatives of those molecules; and

(e) patent RE 42,645 E was not an enlargement of patent RE 35,734 E.[81]

1. The amended statement of claim also amended the claim regarding why the representations made in the emails were misleading or deceptive.
2. The plea that the plaintiff did not hold a patent in relation to Formulation 200, was amended as follows:[82]

at no material time did [the plaintiff] hold a patent for physiologically synthesised Glutathione using a mixture of glutamic acid, cystine and glycine supported by a molar ratio of 1:1:1 in relation to Formulation 200 in the terms represented in the First Patent Representations or the First Agreement Representations.

1. The particulars to that paragraph were amended as follows:[83]

[the plaintiff] had dropped from its patent application claims described as supporting a molar ratio of 1:1:1 'Claims 1 to 12', which covered the use which [the defendant] wished to use Formulation 200 as being a patent protected product manufactured using a molar ratio of 1:1:1. This meant that at no material time did [the plaintiff] have the right protected by a patent to market and supply Formulation 200 to [the defendant] on the basis that it was protected by a patent for its production using a molar ratio of 1:1:1.

1. Further, it was alleged that the representations were misleading because:[84]

(a) the granting of the RE42,645 E patent by the USPO was not an enlargement of the plaintiff's patent RE 39,734 E;

(b) the USPO issuing patent RE 42,645E without limitations of ratios of its amino acids ingredients (being a mixture of glutamic acid, cystine and glycine) did not mean that patent RE42,645E embraced all possible formulations and all permutations and computations of the formulation were open to the plaintiff;

(c) the failure to disclose the matters pleaded created the impression, and amounted to a representation to the defendant, that the plaintiff held the full and valid rights, duly protected by the USPO patents, to protect the matters pleaded.

Why the defendant says that summary judgment should not be entered

1. The defendant's submissions referred to the amended statement of claim that it filed in the Misleading or Deceptive Conduct Claim.[85]
2. The defendant submitted that the concept of fraud as a defence to the enforcement of a foreign judgment is not confined in the common law sense, but may also extend to forms of equitable fraud, in line with broader equitable principles recognised by Australian courts.[86]
3. The defendant acknowledged that the claims made in the Misleading or Deceptive Conduct Claim do not require the defendant to establish subjective intent on the part of the plaintiff (as it would need to do if it was alleging fraud on the part of the plaintiff).[87]
4. The defendant referred to O 20 r 17 of the Rules of the Supreme Court which deals with set off. It contended that the rule permits the defendant to assert a complete set-off on the basis of its claims in the Misleading or Deceptive Conduct Claim, thereby negating the plaintiff's claim for summary judgment.[88]
5. The defendant argued that it did not seek to re-litigate the matters it raised by way of defence, or on appeal, in the US Proceedings, and that the claims made in the Misleading or Deceptive Conduct Claim were extraneous to the matters addressed in the earlier litigation.[89]
6. The defendant asserted that the plaintiff has no material assets located in Australia. The defendant contended that, if summary judgment was granted, there was a real and immediate risk that the plaintiff may transfer the proceeds of any judgment abroad, leaving the defendant without any practical means of recovering the losses alleged in its amended statement of claim. It was argued that these circumstances constituted 'some other reason' to refuse summary judgment for the purposes of O 14 of the Rules of the Supreme Court. [90]
7. The defendant argued that for the purposes of this application, the court would need to determine whether the following matters ought properly to be determined at trial rather than finally determined (as it was said they would effectively be by the grant of summary judgment):

(a) whether each or any of the representations alleged to have been made by Dr Crum for and on behalf of the plaintiff were misleading or deceptive;

(b) whether the misrepresentations can be attributed to the plaintiff (that is, that Dr Crum was the agent of the plaintiff and therefore the plaintiff is accessorily liable for the acts of Dr Crum); and

(c) whether the misrepresentations were relied upon by, and caused, the defendant to enter into the Distribution Agreements, and that thereby the defendant suffered loss.[91]

1. The defendant relied upon the possibility of such a 'set‑off' defence to resist summary judgment. [92]
2. The defendant did not identify any authority for the proposition that the defence of set-off was an available defence to a common law claim for the enforcement of a foreign judgment. It was contended that the absence of any authority that such a defence was not open was a reason why summary judgment should not be entered.[93]
3. The defendant argued that where a claim for the enforcement of a foreign judgment is made at common law (rather than under the Foreign Judgments Act) it was a claim in debt.[94]
4. The defendant argued that there is no statutory provision prohibiting a defence of set-off to a common law debt claim based on a foreign judgment, and there are statutory provisions to the contrary. It referred to s 24(2) and s 25(12) of the Supreme Court Act 1932 (WA) (Supreme Court Act) which it said expressly preserve equitable jurisdiction and defences over common law.
5. The defendant also referred to the judgment of Corboy J in Palaniappan v Westpac Banking Corporation,[95] where his Honour considered the operation of an equitable set-off as a 'true' or 'substantive' defence to a debt claim.[96]
6. The defendant argued that the legal right of set-off provided for by O 20 r 17 does not displace the established principles of equitable set‑off. It was argued that a defence of equitable set-off is expressly enshrined as being available in the present circumstances.[97]
7. At the hearing before me, counsel for the defendant argued that the essential question for the court was not whether the court should, or would ultimately, uphold the defendant's set-off claim but rather whether equity can intervene in the circumstances. It was contended that the outcome followed from the determination of that question.[98]

Why the plaintiff says that summary judgment should be entered

1. The plaintiff disputed that Dr Marnickavasagar's evidence established a triable case of misleading or deceptive conduct for two reasons.
2. First, the plaintiff pointed to the fact that the Second Marnickavasagar Affidavit verified the claims made in the original statement of claim but not the amended statement of claim. It was contended that Dr Marnickavasagar verified a different case to that now advanced.[99]
3. The plaintiff pointed to various affidavits in which Dr Marnickavasagar had verified the claim made in the original statement of claim and the absence of any explanation for the evolution of that claim.[100]
4. Secondly, the plaintiff argued that in any event, Dr Marnickavasagar's evidence failed to establish a triable case for misleading or deceptive conduct.[101]
5. The plaintiff attacked Dr Marnickavasagar's evidence as vague and lacking precision. It was argued that this was particularly significant when consideration was given to the precision required to establish a claim for misleading or deceptive conduct based on an oral representation, and referred to Watson v Foxman.[102]
6. The plaintiff also contended that there was no admissible evidence that anything said by representatives of the plaintiff was false. The plaintiff argued that the evidence relied upon by the defendant is hearsay, and that the defendant has not explained how that establishes the falsity of the alleged representations.[103]
7. The plaintiff questioned Dr Marnickavasagar's credit more generally and referred to proceedings in the Federal Court taken by the Australian Securities and Investments Commission against the defendant and Dr Marnickavasagar in Australian Securities and Investments Commission (ASIC) v Holista Colltech Pty Ltd.[104] In those proceedings, Dr Marnickavasagar was found to have permitted the defendant to contravene provisions of the Corporations Act 2001 (Cth) and to have provided false and misleading information to the Australian Securities Exchange.
8. The plaintiff also identified various matters that it maintained were difficulties with the Misleading or Deceptive Conduct Claim.[105]
9. The plaintiff argued that the cases universally proclaim that there are only limited grounds to challenge the recognition and enforcement of a foreign judgment.[106] The plaintiff disputed that the basis upon which the defendant sought to defend the proceedings raised an available ground of defence.
10. The plaintiff argued that in order to enliven the court's power to set aside a foreign judgment on the ground of fraud, actual fraud must be established, which reflects the interest in finality in litigation, and it referred to the decisions in Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed)[107] and Dickson v Cmr of the Australian Federal Police.[108]
11. The plaintiff submitted that common law fraud requires an act or omission done for an intentionally deceitful purpose or with reckless indifference as to the truth or falsity of the representation. It argued that the test is subjective, a 'wicked mind' is required, and mere carelessness will not suffice to constitute fraud at common law. It was submitted that the onus was on the defendant to establish fraud and that any claim based on fraud must be pleaded distinctly and with particularity, and fraud must be strictly proved. [109]
12. The plaintiff argued that even if the defendant's allegations of misleading or deceptive conduct were true, this would not establish fraud sufficient to resist the registration of the judgement.[110] It was argued that it was necessary for the defendant to establish actual fraud and the allegations made in these proceedings were insufficient to do so.
13. The plaintiff was unable to identify any cases which considered the question of whether an equitable set-off could be raised as a defence to the enforcement of a foreign judgment was addressed.[111]
14. The plaintiff argued that a claim under s 18 of the ACL was a counterclaim that did not impeach the plaintiff's entitlement to enforce the foreign judgment. The plaintiff submitted that the action for the enforcement of the foreign judgment must not be confused with the underlying cause of action.[112]
15. The plaintiff accepted such a counterclaim may have constituted a defence in the original foreign proceeding, but it argued the defendant is precluded from raising, in a proceeding for the enforcement of a foreign judgment, a matter which might merely have been a defence in the foreign proceeding in the absence of a case that the foreign judgment was obtained by actual fraud.[113]
16. The plaintiff argued that even if the defendant only discovered the 'truth' in November 2022 after the initial judgment in the US Proceedings, this did not preclude the defendant from raising allegations about the false statements made by the plaintiff by a motion to alter or amend the initial judgment granting the plaintiff summary judgment, or to raise them in any of the proceedings after the initial judgment, including the appeal, or to move for relief from the US District Court Judgment. [114]
17. The plaintiff relied on evidence given by Mr Abbott that there were a number of steps the defendant could have taken in the US Proceedings over an extended period of time to relieve it from the US District Court Judgment, or have it set aside by the court.[115]
18. The plaintiff submitted that the defendant had indicated that it proposed to file expert evidence from an American lawyer to establish that it had no avenue of recourse but had failed to do so.[116]
19. The plaintiff argued that it was open to the defendant to raise the issues it wished to raise in the US Proceedings and it failed to do so.[117]
20. Further, the plaintiff contended that the defendant's attempt to raise an equitable set-off was seeking to approbate and reprobate. The plaintiff contended that the defendant sought to attack the validity of the Distribution Agreements despite the fact that its claim for damages was premised on the validity of those arguments.[118]
21. The plaintiff contended that by raising the matters that the defendant was seeking to raise, it sought to mount a collateral attack on the US District Court Judgment.[119]

1. The defendant did not dispute that the plaintiff has satisfied the common law requirements for the recognition and enforcement of a foreign judgment. I am satisfied that it has. It is therefore prima facie entitled to enforce the US District Court Judgment as a valid obligation unless the defendant can establish a defence.
2. The defendant says that summary judgment should not be entered because it has demonstrated an arguable defence of equitable set-off. It relies on Dr Marnickavasagar's evidence to establish that defence.
3. It is necessary to subject that evidence to proper scrutiny. As Lord Diplock observed in Eng Mee Yong v Letchumanan s/o Velayutham:[120]

Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be.

1. In the Second Marnickavasagar Affidavit, Dr Marnickavasagar deposes to receiving the four emails referred to in the statement of claim and to what he understood the position to be after receiving those matters. The weight to be given to his evidence must be assessed in light of two matters, however.
2. First, Dr Marnickavasagar deposed that after he received the first email on 7 December 2025, he searched the internet to gain as much publicly available information as he could about the plaintiff and Dr Crum. As Dr Marnickavasagar no longer has a record of those searches, how much information he obtained and from where is unclear. However, given that he has said that he wanted to gain as much publicly available information as he could, it may be inferred that the searches were extensive.[121]
3. When Dr Marnickavasagar came to explain what he understood the email of 7 December 2014 to mean, he expressly acknowledged that his understanding was partly based on his internet searches and his knowledge as a pharmacist trained in holistic medicine.[122]
4. When Dr Marnickavasagar explained how he understood the later emails, he did not similarly acknowledge that his understanding of those emails was equally affected by information gleaned from his internet searches and his knowledge as a pharmacist. It seems likely that it would have been, however. The same information and knowledge would seem to be equally relevant and Dr Marnickavasagar does not say that he disregarded that information and knowledge when he came to consider the later emails.
5. That Dr Marnickavasagar had regard to information and knowledge other than that set out in the emails raises the real possibility that his understanding of matters set out in his affidavit came from that other information and his knowledge, rather than any representation made by the plaintiff. Dr Marnickavasagar's vague evidence about the searches undertaken and his knowledge, and his failure to explain how these matters contributed to the understanding he deposes to having, makes it impossible to know.
6. Further, Dr Marnickavasagar deposes to various communications with representatives of the plaintiff that are not relied upon (at least in the statement of claim), including telephone calls for which he has kept no notes. The extent to which these communications have influenced his understanding of the later emails is equally opaque.
7. Secondly, Dr Marnickavasagar's evidence fails to condescend to identifying the parts of the relevant documents that he says he understood made the particular written representations. His evidence is pitched at a high level of generality which leaves the reader to guess.
8. The four emails referred to in the statement of claim and their attachments extend to 121 pages. It is therefore not immediately obvious how the documents are said to give rise to the representations. Precise evidence from Dr Marnickavasagar about what he understood, and why, was required. It was absent.
9. Nor were these matters explained in the defendant's submissions.
10. In my view, in combination, these two matters greatly reduce the weight to be attached to Dr Marnickavasagar's evidence about the emails and what he understood them to mean.
11. The weight to be attached to Dr Marnickavasagar's evidence is further reduced by the fact that the statement of claim was amended after Dr Marnickavasagar swore the Second Marnickavasagar Affidavit.
12. The Second Marnickavasagar Affidavit was drafted to address the representations made in the statement of claim. The amendments to the statement of claim allege new representations made in different emails. Even if those emails were attached to the Second Marnickavasagar Affidavit, precisely how Dr Marnickavasagar understood the emails and why is left unclear.
13. Further, the amendments to the statement of claim have materially altered the terms of the representations alleged. References are now made to more than one patent. The allegation made in paragraph 9.c of the statement of claim that the plaintiff failed to disclose that patent RE42,645 E did not include 'Claims 1 to 12' has been deleted.
14. The defendant has not explained how Dr Marnickavasagar's evidence supports its amended case. It is not obvious how his evidence is to be reconciled against the amended claims. For example, Dr Marnickavasagar's evidence seems to attach some significance to 'Claims 1 to 12' not being included in the patent but the references to those claims have now been deleted from the statement of claim.
15. Nor has any explanation been proffered for why these amendments have been made.
16. The defendant also alleges that representations were made in the contracts. While the terms of those representations may be established by the terms of the contracts, Dr Marnickavasagar's evidence that he relied on the representations by deciding not to undertake any searches or due diligence because of their presence struck me as self-serving.
17. Dr Marnickavasagar did not produce any contemporaneous evidence to support his assertion that he paid particular regard to these clauses, or that their presence caused him to abstain from searches or due diligence.
18. Dr Marnickavasagar's evidence that he abstained from searches or due diligence seems to be inconsistent with his evidence that he had earlier undertaken an extensive search of the public record, and that he had carefully scrutinised the material provided to him by the plaintiff. His evidence that he abstained from searches or due diligence, therefore, did not strike me as particularly plausible.
19. Nor has the defendant produced any direct evidence that the representations made were false. The only evidence that the representations were false is hearsay, or hearsay upon hearsay. The ultimate source of the evidence relied upon seemed to be Dr Lile. No sworn evidence was obtained from Dr Lile testifying to her qualifications, what she had said, or the truth of what she said. She is also not independent, given that she too is involved in litigation with the plaintiff.
20. No explanation was proffered as to why independent evidence was not obtained.
21. Dr Marnickavasagar seemed to suggest that Dr Lile had some relevant expertise to make the observations that she did. It is unclear whether Dr Marnickavasagar has any similar expertise or is otherwise qualified to give such evidence.
22. Nor was it explained how what Dr Lile said demonstrated the falsity of the representations.
23. Dr Marnickavasagar did not seem to engage with the allegations concerning sizing or address why those allegations had any substance.
24. The evidence relied upon to establish that it was too late to raise an allegation of fraudulent representations in the US Proceedings was also hearsay. Again, this meant that there was no sworn evidence from Mr Bhushan, or some other independent person, to confirm the veracity of what Dr Marnickavasagar claims he was told. Despite such evidence being foreshadowed, again no explanation was proffered for its absence.
25. Dr Marnickavasagar has no relevant expertise and is himself unqualified to give evidence about the law and procedure applicable in the US District Court, or the US Court of Appeals.
26. The assertion that it was too late to raise the matter in the US Proceedings also seems implausible. That the defendant was precluded from raising the issue is also contradicted by Mr Abbott's direct sworn evidence (which I accept).
27. Given all of the deficiencies with Dr Marnickavasagar's evidence, I am not prepared to attach much weight to it. When I consider his evidence as a whole, I am not satisfied that it establishes a triable claim of misleading or deceptive conduct.
28. Even if the evidence had established a triable claim of misleading or deceptive conduct, in the particular circumstances of this case, I am not persuaded that such a claim would have demonstrated an arguable defence of equitable set-off.
29. As recognised in Palaniappan v Westpac Banking Corporation and other cases, a claim for misleading or deceptive conduct can in some circumstances give rise to a defence of equitable set-off. As Corboy J (with whom Martin CJ agreed) explained in that case, however, in order to establish the defence of equitable set-off:[123]

conventionally the defendant has been required to show a sufficiently close connection between the demands so that it would be unjust to allow the plaintiff to enforce its claim without taking into account the defendant's cross-claim

1. The plaintiff's claim in these proceedings is to enforce a judgment. The defendant does not seek to impugn that judgment.
2. Although the defendant's written submissions might have hinted at an argument that the judgment was obtained by 'fraud', no such argument was advanced. Rather, the defendant's case was put on the basis that it had an arguable case of equitable set-off based on the Misleading or Deceptive Conduct Claim.
3. Such a claim does not seek to impugn the US District Court Judgment. Rather, the defendant seeks damages equivalent to the US District Court Judgment. Such a claim proceeds on the assumption that the US District Court Judgment was validly entered and is enforceable.
4. The US District Court Judgment was entered because the US District Court was satisfied that the defendant had breached the Distribution Agreements. The defendant does not seek to challenge that conclusion, nor could it do so given the estoppels that arise.
5. In these circumstances, the defendant's damages claim seems too far removed from the plaintiff's claim to enforce the judgment to give rise to an equitable set-off.
6. Nor would I consider it unjust to allow the plaintiff to enforce its claim without taking into account the defendant's cross-claim.
7. The US District Court Judgment was obtained after hard fought litigation and has been the subject of an unsuccessful appeal. I am not satisfied that it was not open to the defendant to have raised a defence based on the alleged misrepresentations in the US Proceedings. On the contrary, I accept Mr Abbott's evidence that it could have been.
8. Further, it is far from clear to me that equitable set-off may even be raised as a defence to a claim to enforce a foreign judgment. The authorities make it plain that the defences available to a claim to enforce a foreign judgment are limited. The defendant was unable to refer me to any authority for the proposition that equitable set-off is a defence to a claim to enforce a foreign judgment.
9. Even if the plaintiff has no assets in this jurisdiction, I do not consider this a reason to refuse summary judgment in this case. The defendant does not assert that it would be unable to enforce any judgment obtained in this court in the United States, if necessary.
10. For all of these reasons, I consider that summary judgment should be entered for the plaintiff.

Whether the judgment should be given in US dollars and interest

1. The plaintiff seeks judgment be entered in US dollars. It referred to cases in other Australian jurisdictions in which judgment was entered in the currency of the foreign jurisdiction.[124] I am satisfied it is appropriate that judgment be entered in US dollars.
2. The plaintiff also sought pre-judgment interest calculated in accordance with the law of the jurisdiction in which the judgment was entered, prior to the commencement of these proceedings. As Rothman J said in Bao v Qu; Tian (No 2), such a course will ordinarily be appropriate.[125] I am satisfied that pre-judgment interest should be calculated on that basis.
3. The plaintiff otherwise seeks interest calculated in accordance with the law of Western Australia and I am also satisfied that that is appropriate.

1. For these reasons, I will grant the plaintiff summary judgment in the terms that it has sought.
2. I will hear from the parties as to the orders that should be made to give effect to this judgment.

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

[1] Affidavit of Ryan Benjamin Abbott filed on 28 April 2025 (First Abbott Affidavit) [4.2].

[2] First Abbott Affidavit [4.7]; 'RBA3' (redacted); Confidential Affidavit of Ryan Benjamin Abbott filed on 28 April 2025 [5]; 'RBA12' (unredacted).

[3] First Abbott Affidavit [4.19]; 'RBA7'.

[4] See for example: Benefit Strategies Group v Prider (2005) 91 SASR 544; [2005] SASC 194 (Benefit Strategies) and Schnabel v Yung Lui [2002] NSWSC 15 (Schnabel).

[5] Yangpu Huigu Pharmaceutical Corporation Limited v He [2025] NSWSC 28 (Yangpu Huigu Pharmaceutical Corporation) [18], [20]; Roe v Howard [2020] VSC 442 [32]; Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435; [2020] NSWSC 588 (Bao v Qu; Tian) [26]; Benefit Strategies [18]; Schnabel [75].

[6] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; Schnabel [74] - [76].

[7] Stern v National Australia Bank [1999] FCA 1421 [133] (Tamberlin J); Suzhou Haishun Investment Management Co. Ltd v Yue'e Zhao & Ors [2019] VSC 110 [92]; Bao v Qu; Tian (No 2) [29]; Yangpu Huigu Pharmaceutical Corporation [18].

[8] Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381 at 402, [1927] HCA 23; RDCW Diamonds Pty Ltd v Da Gloria [2006] NSWSC 450 (RDCW Diamonds) [31]; Bao v Qu; Tian (No 2) [30].

[9] RDCW Diamonds [28]; XPlore Technologies Corporation of America v Tough Corp Pty Ltd [2008] NSWSC 1267 (XPlore Technologies) [16]. Bao v Qu; Tian (No 2) [30].

[10] Nygh's Conflict of Laws in Australia (10th ed, LexisNexis Butterworths, 2020), [40.93] - [40.94].

[11] Zaghloul v Bayly [2021] WASCA 125 (Zaghloul).

[13] Statement of Claim dated 15 October 2025 (Statement of Claim) [3].

[28] Statement of claim [9.a], [17.a], [25.a].

[31] Statement of claim [9.b], [17.b], [25.c].

[33] Statement of claim [11], [19], [27].

[35] Statement of claim [13], [21], [29.a].

[36] Statement of claim [13], [21], [29.a].

[38] Statement of claim [14], [22], [31].

[39] Statement of claim [15], [23], [32].

[41] Second Marnickavasagar Affidavit [20].

[42] Statement of claim [9.a], particular A.

[43] Second Marnickavasagar Affidavit [21] - [22].

[44] Second Marnickavasagar Affidavit [23].

[45] Second Marnickavasagar Affidavit [23.d]; Annexure 'RM-6', pages 356 - 363.

[46] Second Marnickavasagar Affidavit [23.d]; Annexure 'RM-7', pages 448 - 550.

[47] Second Marnickavasagar Affidavit [23.d].

[48] Second Marnickavasagar Affidavit [23.e].

[49] Second Marnickavasagar Affidavit [23.e].

[50] Second Marnickavasagar Affidavit [23.e].

[51] Second Marnickavasagar Affidavit [23.k].

[52] Second Marnickavasagar Affidavit [25].

[53] Second Marnickavasagar Affidavit [28].

[54] Statement of claim [9.a], particular C.

[55] Second Marnickavasagar Affidavit [28.a].

[56] Second Marnickavasagar Affidavit [29].

[57] Second Marnickavasagar Affidavit [31].

[58] Statement of claim [9.a], particular D.

[59] Second Marnickavasagar Affidavit [31.c] - [31.d].

[60] Second Marnickavasagar Affidavit [32] - [33].

[61] Second Marnickavasagar Affidavit [34].

[62] Second Marnickavasagar Affidavit [35].

[63] Second Marnickavasagar Affidavit [37].

[64] Second Marnickavasagar Affidavit [39].

[65] Second Marnickavasagar Affidavit [43].

[66] Second Marnickavasagar Affidavit [45].

[67] Second Marnickavasagar Affidavit [46].

[68] Second Marnickavasagar Affidavit [47] - [56].

[69] Second Marnickavasagar Affidavit [57].

[70] Second Marnickavasagar Affidavit [58].

[71] Second Marnickavasagar Affidavit [61].

[72] Second Marnickavasagar Affidavit [64].

[73] Second Marnickavasagar Affidavit [65].

[74] Second Marnickavasagar Affidavit [66].

[75] Second Marnickavasagar Affidavit [69].

[76] Minute of amended statement of claim dated 6 October 2025 (Amended Statement of Claim) [9.a.iii].

[77] Statement of claim [9.a.vi-x], [17.a], [25.a].

[78] Statement of claim [9.a.vi-x], particulars A, F - H.

[80] Statement of claim [9], particulars.

[81] Statement of claim [9A], [17.b], [25.b].

[82] Statement of claim [13.a], [21.a], [29.a].

[83] Statement of claim [13.a], [21.a], [29.a].

[84] Statement of claim [13.b-d], [21.b-c], [29.b-c].

[85] Defendant's Submissions in Opposition to the Plaintiff's Application Seeking Orders for Summary Judgment dated 22 October 2025 (Defendant's Primary Submissions) [20] - [21].

[86] Defendant's Primary Submissions [23].

[87] Defendant's Primary Submissions [24].

[88] Defendant's Primary Submissions [29].

[89] Defendant's Primary Submissions [31].

[90] Defendant's Primary Submissions [32].

[91] Defendant's Primary Submissions [36].

[92] Defendant's Primary Submissions [33] - [34].

[93] Defendant's Submissions Pursuant to Order 1 of the Orders made by the Honourable Justice Palmer on 23 October 2025 (Defendant's Supplementary Submissions).

[94] XPlore Technologies [15]. Defendant's Supplementary Submissions [4].

[95] Palaniappan v Westpac Banking Corporation [2016] WASCA 72 (Palaniappan) [127].

[96] Defendant's Supplementary Submissions [10].

[97] Defendant's Supplementary Submissions [13] - [14].

[98] Defendant's Supplementary Submissions [2.c]; Transcript of hearing dated 13 November 2025, ts 80 ‑ ts 81.

[101] Plaintiff's Submissions in Support of Originating Summons dated 24 September 2025 (Plaintiff's Primary Submissions) [29.1] - [29.3]; ts 42 - 44.

[102] Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315, 319; Plaintiff's Primary Submissions [29.4].

[103] Plaintiff's Primary Submissions [29.4].

[104] Australian Securities and Investments Commission (ASIC) v Holista Colltech Pty Ltd [2024] FCA 244; Plaintiff's Primary Submissions [23].

[105] Plaintiff's Primary Submissions [28].

[106] Plaintiff's Supplementary Submissions Pursuant to Orders of Palmer J made on 23 October 2025 (Plaintiff's Supplementary Submissions) [7].

[107] Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12 [55], [57].

[108] Dickson v Cmr of the Australian Federal Police [2019] NSWSC 1293 [118] - [123]; Plaintiff's Primary Submissions [20].

[109] Plaintiff's Primary Submissions [20].

[110] Plaintiff's Primary Submissions [26] - [27].

[111] Plaintiff's Supplementary Submissions [9].

[112] Plaintiff's Supplementary Submissions [9.1].

[113] Plaintiff's Supplementary Submissions [9.2], [16].

[114] Plaintiff's Primary Submissions [27].

[115] Third Affidavit of Ryan Benjamin Abbott filed on 24 September 2025 [13] - [15], [27], [29.5].

[116] Plaintiff's Primary Submissions [29.6].

[117] Plaintiff's Primary Submissions [30].

[118] Plaintiff's Supplementary Submissions [10] - [13].

[119] Plaintiff's Supplementary Submissions [15].

[120] Eng Mee Yong v Letchumanan s/o Velayutham [1979] UKPC 13; [1980] AC 331, page 341. See Pisano v South Metropolitan Health Service [2023] WASCA 80 [52(5)].

[121] Second Marnickavasagar Affidavit [21] - [22].

[122] Second Marnickavasagar Affidavit [23].