BCM INTERNATIONAL LIMITED -v- LIST [2026] WASC 245

[2026] WASC 245 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BCM INTERNATIONAL LIMITED -v- LIST [2026] WASC 245 CORAM : PALMER J HEARD : 17 JUNE 2026 DELIVERED : 17 JUNE 2026 FILE NO/S : CIV 1666 of 2025 BETWEEN : BCM INTERNATIONAL LIMITED Plaintiff AND ANGELA DIALA LIST Defendant Catchwords: Practice and procedure - Application to extend validity of writ -Plaintiff also commenced proceedings against the defendant in the Commercial Division of the High Court of Accra in Ghana - Application turn on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 7 r 1(1) and (2) Result: Application allowed Category: B -- 1 of 8 -- [2026] WASC 245 Page 2 Representation: Counsel: Plaintiff : Mr S Murphy Defendant : Not applicable Solicitors: Plaintiff : Tudori Hager Grubb Defendant : Not applicable Case(s) referred to in decision(s): Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Delfino v Travis (No 2) [1963] NSWR 194 Popovic (as executor of the estate of Popovic) v Panagoulias (by next friend Panagoulias) [2014] WASCA 86 Rose v MacMahon Contractors Pty Ltd [No 3] [2025] WASC 525 -- 2 of 8 -- [2026] WASC 245 PALMER J Page 3 PALMER J: Introduction 1 By an ex parte notice of motion dated 15 June 2026 (the Application), the plaintiff applies for an order pursuant to O 7 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court) to extend the validity of the writ in these proceedings (the Writ). 2 The Application is supported by an Affidavit of Paul Edward List sworn 12 June 2026 (the List Affidavit). 3 The Application was listed before me on an urgent basis on 17 June 2026. 4 At the hearing of the Application, I indicated that I would allow the Application and I would publish reasons for my decision. These are those reasons. The claims made in the Writ 5 The Writ is generally indorsed. 6 The indorsement to the Writ states that the plaintiff's claim against the defendant is for breach of contract, breach of fiduciary duties 'pursuant to the common law', breach of director's duties pursuant to the laws of St Kitts and Nevis, unjust enrichment and conversion. 7 The indorsement states that this claim arises in circumstances in which the defendant was employed by the plaintiff: (a) acting in the capacity of Finance Director; (b) transferred or caused to be transferred, the total sum of USD$2,100,000 from the plaintiff, on or about the following dates and in the following amounts: (i) 24 June 2019, the amount of USD$200,000; (ii) 13 March 2020, the amount of USD$500,000; (iii) 25 March 2020, the amount of USD$1,200,000; and (iv) 8 June 2020, the amount of USD$200,000; -- 3 of 8 -- [2026] WASC 245 PALMER J Page 4 (c) made, or caused these transfers to be made, without authority or the plaintiff's prior knowledge or consent, and otherwise to the personal benefit of the defendant and to the detriment of the plaintiff; and (d) acted in breach of the plaintiff's trust and confidence. 8 The Writ seeks as relief declarations and damages, or alternatively equitable compensation and an account. Why the plaintiff says that the Writ should be extended 9 The plaintiff relies upon the following circumstances set out in the List Affidavit to support the making of the orders sought. 10 The plaintiff was incorporated in St Kitts and Nevis in 1999 and since then has owned and operated a mining investment business in Africa.1 11 Mr Paul List is the CEO, majority shareholder and a founding director of the plaintiff.2 12 The defendant is Mr List's former wife, who was a director and employee of the plaintiff between 14 September 2001 and 3 October 2020, who lived in Western Australia with Mr List (before they separated) and who owns real estate here.3 13 The Writ has not been served on the defendant. The reason for the delay in the service of the Writ is as follows:4 (a) the plaintiff's principal place of business is in Ghana and, on or about 27 November 2023, the plaintiff commenced legal proceedings in the Commercial Division of the High Court of Accra against the defendant and her private investment company (the Ghanaian Proceedings); (b) the Ghanaian Proceedings include the same subject matter as the present proceedings in Western Australia - namely, seeking the recovery of USD $2,100,000 alleged to have been transferred by the defendant from the plaintiff; 1 List Affidavit [4]. 2 List Affidavit [1]. 3 List Affidavit [8]. 4 List Affidavit [13] - [14]. -- 4 of 8 -- [2026] WASC 245 PALMER J Page 5 (c) the Ghanaian Proceedings are well advanced. Pleadings have closed and although the matter has not yet been listed for trial, this is because the parties are currently engaged in mediation; (d) the plaintiff has deferred service of the Writ in Australia pending the outcome of, or a material development in, the Ghanaian Proceedings 'in attempt to avoid any risk of the duplication and expense of parallel litigation across two jurisdictions'; (e) as part of the current mediation, the plaintiff intends to attempt to resolve all of his outstanding disputes with the defendant, including the matters the subject of these proceedings; (f) the Courts of Ghana may have jurisdiction to determine the subject matter of these proceedings and the need for these proceedings to be prosecuted may fall away. Mr List attaches a judgment of the High Court of Ghana dismissing an application made by the defendant to dismiss the Ghanaian Proceedings for want of jurisdiction; (g) matters relevant to this proceeding may be clarified by evidence, disclosures or other developments in the Ghanaian Proceedings; and (h) developments in the Ghanaian Proceedings may assist in identifying and refining the issues relevant to the plaintiff's claims in these proceedings. 14 The plaintiff unsuccessfully attempted to serve the defendant at an address in Western Australia on 4 June 2026.5 15 Based on documents filed and exchanged in the Ghanaian Proceedings, Mr List believes that the defendant has a property in Accra, Ghana.6 16 If the Application is granted, the plaintiff intends to continue to attempt to serve the Writ on the defendant in Australia and in Ghana (after obtaining leave to do so under O 10 r 6 of the Rules of the Supreme Court).7 5 List Affidavit [15]. 6 List Affidavit [16]. 7 List Affidavit [17]. -- 5 of 8 -- [2026] WASC 245 PALMER J Page 6 17 The last act or omission that is the subject of the Writ occurred on or about 8 June 2020.8 If leave to extend the validity of the Writ is not given, the plaintiff will suffer substantial prejudice because any fresh proceedings will be statute barred.9 When the validity of a writ will be extended 18 Order 7 r 1(1) of the Rules of the Supreme Court provides that a writ is valid in the first instance for 12 months beginning with the date of its issue. 19 Order 7 r 1(2) of the Rules of the Supreme Court provides that where a writ has not been served on a defendant, the Court may by order extend the validity of the writ for a period not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire. 20 The discretion conferred by the rule is a broad one. In Popovic (as executor of the estate of Popovic) v Panagoulias (by next friend Panagoulias),10 the Court of Appeal (Martin CJ, Pullin and Newnes JJA) observed that:11 Order 7 r 1(2) provides, in effect, that where a writ has not been served on a defendant within a period of 12 months from its date of issue, the court may extend the validity of the writ for service from time to time for a period not exceeding 12 months at any one time. The discretion conferred by the rule is a broad one. The exercise of the discretion was described in Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 by Ipp J (with whom Malcolm CJ & Anderson J agreed) as follows: [T]he discretion to renew a writ after a limitation period has expired should be exercised by reference to the general justice of the case taking into account all the relevant circumstances. These would include not only the provisions of any limitation statute applicable but also the relative hardships which a grant or refusal of renewal would impose upon the parties. Relevant factors include the length of the delay, whether the delay was caused by mistake and whether such mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it [52]. 8 List Affidavit [12]. 9 List Affidavit [18]. 10 Popovic (as executor of the estate of Popovic) v Panagoulias (by next friend Panagoulias) [2014] WASCA 86 (Popovic). 11 Popovic [41] - [42]. -- 6 of 8 -- [2026] WASC 245 PALMER J Page 7 It is correct, in our view, that the hardship or prejudice to a defendant to be taken into account on an application under O 7 r 1(2) is not limited to that which arises from events after the expiration of the 12 month period under O 7 r 1(1). The relevant hardship or prejudice is that which will arise if the validity of the writ is extended, whether that hardship or prejudice comes about by reason of events before or after the expiration of the period for service of the writ. However, the weight to be given to hardship or prejudice caused by events before and after the expiration of that period respectively will depend upon the particular circumstances of the case. There can be no hard and fast rules as to that, although no doubt in many cases hardship or prejudice arising from post-expiration events may tend to loom larger than hardship or prejudice arising from events that had occurred before the period for service had expired. 21 The relevant principles were also summarised by Strk J in Rose v MacMahon Contractors Pty Ltd [No 3].12 I respectfully agree with and gratefully adopt what her Honour said there. Whether the Writ should be extended 22 The evidence before me suggested that the limitation period within which the plaintiff must bring its claim has now expired. The defendant might therefore raise a limitation defence to any fresh proceedings that the plaintiff might now commence. 23 While it is true that the plaintiff has also brought proceedings in Ghana, it does not necessarily follow that the plaintiff would not need to prosecute its claims in this court. For example, one means of enforcing any judgment obtained from the Ghanaian court would be to prosecute the plaintiff's claim against the defendant in this court, relying on estoppels arising from the Ghanaian judgment.13 Such a course could be necessary to obtain a judgment that could be executed against the defendant's assets in this jurisdiction. 24 In the circumstances, I considered that refusing to extend the Writ is likely to cause the plaintiff material prejudice. 25 While there has been some delay in serving the Writ, that delay has been explained and the plaintiff has now indicated an intention to serve the Writ. 12 Rose v MacMahon Contractors Pty Ltd [No 3] [2025] WASC 525 [7] - [18]. 13 Delfino v Travis (No 2) [1963] NSWR 194 at 196; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 918, 927, 948, 966. -- 7 of 8 -- [2026] WASC 245 PALMER J Page 8 26 The material before me did not identify any prejudice or hardship that the defendant would suffer. This is not a case in which the defendant's delay in serving the Writ is likely to have prejudiced the defendant's ability to prepare her defence to the claims. It would already have been necessary for her to have prepared that defence for the Ghanaian Proceedings. 27 In all of these circumstances, I considered that it was in the interests of justice to extend the validity of the Writ. Conclusion 28 For these reasons, I allowed the Application. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SK Associate to the Hon. Justice Palmer 17 JUNE 2026 -- 8 of 8 --