VINES & ANOR -v- KONSTEK & ANOR [2025] WASC 487 (18 November 2025)

(a) an affidavit by Mr Vines affirmed 16 October 2025 (First Vines Affidavit); and

(b) an affidavit of Hugo Michea-Palmer, a legal practitioner employed by the Applicant's lawyers, sworn 17 October 2025 (Michea-Palmer Affidavit);

(c) an affidavit of Mr Vines sworn 3 November 2025 (Second Vines Affidavit); and

(d) an affidavit of Mr Posniak sworn 4 November 2025 (Posniak Affidavit).

(a) an affidavit of Mr Konstek sworn 28 October 2025 (First Konstek Affidavit); and

(b) an affidavit of Mr Konstek sworn 6 November 2025 (Second Konstek Affidavit).

1. The following facts emerge from the evidence before the court.
2. On or about 3 October 2019, the Facilities Trust was established as a discretionary trust. The two trustees were Mr Posniak and Mr Konstek.[1]
3. On or about 3 October 2019, the Security Trust was established as a discretionary trust. The two trustees again were Mr Posniak and Mr Konstek.[2]
4. On 5 June 2020, the Facilities Trust was amended to remove Mr Konstek as a trustee.[3]
5. On 5 June 2020, the Security Trust was amended to remove Mr Konstek as a trustee.[4]
6. The Partnership was established by a written instrument, dated 8 June 2020, made between Mr Posniak as trustee for the Security Trust and Mr Posniak as trustee for the Facilities Trust (Partnership Agreement).[5]
7. The Partnership has been registered as a business with ASIC since 17 June 2020 and has an ABN. The holder of the business name is the Facilities Trust and the Securities Trust.[6]
8. There is in evidence an unsigned deed of variation to the Facilities Trust from 2024, pursuant to which Mr Konstek was appointed trustee of the Security Trust. Mr Posniak remained a trustee.[7]
9. Also in evidence there is an unsigned deed of variation to the Security Trust from 2024, pursuant to which Mr Konstek was appointed trustee of the Securities Trust. Mr Posniak again remained as trustee.[8]
10. By an undated but signed deed from 2024, Mr Posniak retired as appointor, guardian and trustee of the Security Trust. The recitals to this deed record both Mr Konstek and Mr Posniak as trustees of the Securities Trust.[9]
11. By an undated but signed deed from 2024, Mr Posniak retired as the appointor, guardian and trustee of the Facilities Trust. The recitals to this deed again both record Mr Konstek and Mr Posniak as trustees of the Facilities Trust.[10]

1. In terms of the current operation of the Partnership, Mr Konstek deposes that he is trustee of both Trusts and runs the Partnership. The Partnership operates a labour hire business, whereby it supplies workers to clients who mainly work in the security industry. He describes the Partnership as a relatively high turnover, low margin business. The Partnership currently employs approximately 2,700 workers under an industrial agreement registered with the West Australian Industrial Relations Commission. The agreement has lapsed, but the parties are continuing it on a monthly basis.[11]
2. Mr Konstek appears to have taken control of the Partnership sometime in 2024. He found that Mr Posniak had run up liabilities in the Partnership in the order of $5 million. Financial statements of the Partnership had not been finalised, and no tax returns had been lodged for the years ending 30 June 2021, 2022, 2023, and 2024. The financial statements that had been prepared by Mr Posniak were, in his view, incorrect.[12]
3. Mr Konstek describes concerns with the conduct of Mr Posniak in the operation of the Partnership in the recent times, involving, among other things, funds owing to the Partnership being paid to the bank account of Ridgefield Investments Pty Ltd. Mr Konstek deposes that there was no reason for this to have occurred.[13]
4. I do note that Mr Posniak, in his affidavit, provides an explanation for the concerns identified by Mr Konstek. For the purposes of determining the Application, I do not need to make any finding in relation to the issues raised.
5. Mr Konstek appointed new accountants. He told Mr Posniak to have nothing to do with the Partnership. He directed clients to pay their invoices into the bank account of the Partnership. Since he has been operating the business, he has managed to satisfy all the liabilities of the Partnership left behind by Mr Posniak. He deposes that the Partnership is now operating profitably and maintaining proper financial records. Its bank account now operates with a credit balance.[14]
6. Mr Konstek deposes that there is now no overdue payment by the Partnership to the Australian Taxation Office, and that, as at 5 November 2025, there was a nil balance in the running account balance for the Partnership with the ATO.[15]
7. Mr Konstek deposes that there is now no amount owing that would entitle Mr Posniak to seek an indemnity from either Trust.[16] He further deposes that since he has been appointed trustee of each Trust, no debt or liability of the Partnership or Trusts has been incurred in the name of Mr Posniak.[17] Nor has Mr Posniak, or anyone on his behalf, made a claim on him as trustee of each Trust for a debt incurred by Mr Posniak.[18] Any such claim would be disputed. [19]
8. Mr Konstek concludes by telling the court there is no reason to wind up the Partnership, and he does not want this to occur.[20]

1. The first issue to determine is whether Mr Posniak is currently a partner in the Partnership. It is this, and only this, which gives the Applicants standing to bring the Application pursuant to PA s 46.
2. It is the case that there is only one Partnership Agreement, at the time when Mr Posniak was the sole trustee.
3. In my view, it is readily arguable that while Mr Posniak was the partner at law, each trust is beneficially entitled to the Partnership interest in equity.[21]
4. In my view, it is also readily arguable that the Partnership Agreement, properly construed, was between the trustee of each trust from time to time, with the beneficial interests continuing in each trust. Therefore, the retirement and replacement of the trustee would not disturb the continued operation of the Partnership Agreement.
5. An alternative argument is that on a change of trustee, the then existing partnership was dissolved and replaced by a new partnership on the same terms, between the new trustee of each trust, and the beneficial entitlements of each trust continued.
6. There is no other argument that I consider plausible.
7. On neither argument is Mr Posniak currently a partner of the Partnership. So he does not have standing to commence an action to dissolve the Partnership. It follows that neither do his trustees in bankruptcy have such standing.
8. I accept that the Applicants raise issues as to the validity of the appointment of Mr Konstek as trustee. It may well be that after a comprehensive analysis of the facts at trial and detailed legal argument, they can make this out.
9. However, it is sufficient for me to find that for the purposes of an interim order for the appointment of a receiver and manager, I am not sufficiently satisfied with the Applicants' argument that they have standing. On this basis alone, the Application must be dismissed.
10. The principles governing the appointment of a receiver on an interim basis are conveniently summarised in the decision of Hill J in Bernard Henricus Lamers as trustee for the Ben and Debra Lamers Family Trust v Arvind Pty Ltd [No 2]:[22]

Pursuant to s 25(9) of the Supreme Court Act 1935 (WA), the court is empowered to appoint a receiver in all cases where it appears to be just and convenient. That said, it is acknowledged that the power to appoint a receiver is drastic, harsh and dangerous and is only to be exercised with utmost care and caution and only where the court is satisfied there is imminent danger of loss if it is not exercised...

If there has been misconduct, waste or improper disposition of assets or a trust is in a state of disarray, or if it appears that the trust property has been improperly managed or is in danger of being lost, or if it can be satisfactorily established the parties in a fiduciary position have been guilty of a breach of duty, there is sufficient foundation for the appointment of a receiver...

In determining whether a receiver should be appointed, the court must be satisfied of two further matters. First, that the case in favour of appointment of a receiver is a strong one. However, in assessing the risk to the trust, the court must apply a qualitative judgment. Second, the receiver will be appointed to preserve the benefit of a person who has an interest in trust property...

That said, no court will make such an order unless convinced of its necessity. A case with some kind and degree of interlocutory relief may be made out, which falls short of this extremely drastic remedy. For example, the court may not be satisfied - and it is of course for the applicant to persuade the court that nothing less than what he seeks will do - that in all the circumstances, it should do more than grant an injunction. At times the court will be induced to refuse the remedy of a receiver by undertakings offered by the defendant...

However, receivers and managers should not be appointed on a disputed claim, where the effect of the appointment would be to, in substance, give judgment in the action on an interlocutory basis...

1. Even if I had been satisfied that the Applicants had standing, I would have not appointed a receiver and manager on an interim basis. To do so would be to accept the disputed claim that Mr Posniak is currently a partner in the Partnership. Whilst there has potentially been some misconduct in the affairs of the Partnership in the recent past, I am not satisfied that there has been potential misconduct or anything else improper in the conduct of the Partnership since it has been under the stewardship of Mr Konstek. It does appear that Mr Konstek is still in the process of regularising the financial records and tax position of the Partnership, and getting to the bottom of the conduct of concerns identified with Mr Posniak. However, the materials before the court are not sufficient to persuade me that Mr Konstek is currently acting in a way that I would characterise as improper. Rather, the Partnership appears to be operating profitably. I am far from satisfied that there is an imminent danger of loss if the power to appoint a receiver is not exercised. There is neither the necessity nor justification for the use of what is described as a 'drastic, harsh and dangerous' power in the circumstances of this case.
2. Rather, in my view, the appropriate course is for the Applicants to sue the Partnership or relevant trust to seek to recover any claim to indemnity asserted on behalf of Mr Posniak. I accept that Mr Vines' inquiries in relation to this are continuing.
3. For these reasons, the Application is dismissed.

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

[1] First Vines Affidavit, paragraph 6, attachment MDV 2.

[2] First Vines Affidavit, paragraph 7, attachment MDV 4.

[3] First Vines Affidavit, paragraph 6, attachment MDV 3.

[4] First Vines Affidavit, paragraph 7, attachment MDV 5.

[5] First Vines Affidavit, paragraphs 21 - 22, attachment MDV 12.

[6] First Vines Affidavit, attachment MDV13.

[7] First Vines Affidavit, paragraph 8, attachment MDV 6.

[8] First Vines Affidavit, paragraph 8, attachment MDV 7.

[9] First Vines Affidavit, paragraphs 12 - 13, attachment MDV8.

[10] First Vines Affidavit, paragraphs 12 - 14, attachment MDV9.

[11] First Konstek Affidavit, paragraphs 7, 8, 10, 58, 60 - 61.

[12] First Konstek Affidavit, paragraphs 21, 30, 36, 39 - 40.

[13] First Konstek Affidavit, paragraphs 12 - 23, 44.

[14] First Konstek Affidavit, paragraphs 31, 40, 46, 51 - 52.

[15] Second Konstek Affidavit, paragraphs 6 - 8.

[16] First Konstek Affidavit, paragraph 47.

[17] First Konstek Affidavit, paragraph 67.

[18] First Konstek Affidavit, paragraph 66.

[19] Second Konstek Affidavit, paragraphs 11 - 12.

[20] First Konstek Affidavit, paragraphs 72 - 73.

[21] Winter Holdings (WA) Pty Ltd [2015] WASC 162 [15] (Gething AM).

[22] Bernard Henricus Lamers as trustee for the Ben and Debra Lamers Family Trust v Arvind Pty Ltd [No 2] [2019] WASC 491 [10] - [14] (Hill J) (references omitted). See also: Banh v Banh [2024] WASC 172 [25] (Forrester J).