DUSOL PTY LTD TRADING AS B W DUCKHAM & CO -v- DELLA-VEDOVA AND SONS [2026] WASCA 67

[2026] WASCA 67 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUSOL PTY LTD TRADING AS B W DUCKHAM & CO -v- DELLA-VEDOVA AND SONS [No 2] [2026] WASCA 67 CORAM : MITCHELL JA ARCHER JA HEARD : 15 MAY 2026 DELIVERED : 15 MAY 2026 PUBLISHED : 15 MAY 2026 FILE NO/S : CACV 64 of 2025 BETWEEN : DUSOL PTY LTD TRADING AS B W DUCKHAM & CO Appellant AND DELLA-VEDOVA AND SONS Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : COBBY J Citation : DELLA-VEDOVA AND SONS -v- DUSOL PTY LTD TRADING AS B W DUCKHAM & CO [2025] WASC 160 File Number : CIV 1844 of 2021 -- 1 of 24 -- [2026] WASCA 67 Page 2 Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : COBBY J Citation : DELLA-VEDOVA AND SONS -v- DUSOL PTY LTD TRADING AS B W DUCKHAM & CO [2025] WASC 160 (S) File Number : CIV 1844 of 2021 Catchwords: Appeal - Practice and procedure - Application for extension of time to comply with springing order after appeal has been dismissed when appellant failed to comply with springing order - Whether proposed grounds of appeal have any reasonable prospect of succeeding - Turns on own facts Legislation: Legal Profession Act 2008 (WA) (repealed), s 260, s 267, s 268 Rules of the Supreme Court 1971 (WA), O12 r 1, O 12 r 6 Supreme Court Act 1935 (WA), s 60(1)(e) Result: Application for an extension of time to comply with springing order refused Appeal remains dismissed pursuant to springing order Category: B Representation: Counsel: Appellant : B W Duckham Respondent : W B MacDonald Solicitors: Appellant : Duckham & Co Pty Ltd Respondent : Biyara Legal -- 2 of 24 -- [2026] WASCA 67 Page 3 Case(s) referred to in decision(s): A v C [No 2] [2015] WASCA 199 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445 Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167 Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 G v W [2021] WASCA 180 Hooper v Cockles Pty Ltd [No 2] [2025] WASCA 157 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 King v Smith [2025] WASCA 6 KWLD v The State of Western Australia [2020] WASCA 94 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 QR 271 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 -- 3 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 4 REASONS OF THE COURT: 1 At the conclusion of the hearing of the appellant's application for an extension of time to comply with a springing order, we ordered that the application be dismissed and that the appeal remained dismissed by operation of the springing order. We said that we would publish reasons for making those orders later. These are our reasons for making those orders. Introduction 2 The appellant (Dusol) was an incorporated legal practice trading as B W Duckham & Co. The respondent (Della-Vedova) is a firm which instructed Dusol to act for it in civil proceedings. In February and March 2019, Dusol and Della-Vedova agreed that Della-Vedova would pay Dusol the sum of $100,000 (plus counsel's fees) in satisfaction of Dusol's claim for about $200,000 in outstanding legal costs. 3 After the $100,000 plus counsel's fees was paid, Dusol contended that the agreement was unenforceable on various grounds including an absence of consideration. Dusol instituted proceedings against Della-Vedova in the District Court of Western Australia (District Court costs proceedings) seeking to recover what it claimed were its outstanding legal fees. Dusol subsequently accepted that, because it had failed to comply with its costs disclosure obligations in s 267 read with s 260(1)(c) of the Legal Profession Act 2008 (WA) (repealed) (LPA), it could not recover those claimed costs without an assessment in accordance with s 268 of that Act. It then instituted proceedings for the assessment of its costs in the General Division of this court (assessment proceedings). 4 Della-Vedova responded by instituting the primary proceedings in the General Division of this court, seeking a declaration that it was not liable to pay any further amount to Dusol and injunctive relief. The trial judge upheld this claim and granted declaratory and injunctive relief. The present appeal is against those orders. 5 Dusol failed to comply with its obligation to file and serve an appellant's case that complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoA Rules). On 15 January 2026, this appeal was dismissed by operation of a springing order. On 1 April 2026, Dusol applied for an extension of time to comply with the springing order. For the following reasons, this application should be dismissed. -- 4 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 5 Primary facts 6 The trial judge made the following findings as to the primary facts. 7 In 2016 Della-Vedova's former accountants, CBSW Pty Ltd, commenced proceedings in the District Court against Della-Vedova seeking payment of unpaid invoices for professional services rendered to Della-Vedova (CBSW proceedings). Della-Vedova retained Dusol to act on its behalf in those proceedings. Bruce Duckham, a solicitor of many years' standing, was a director of Dusol.1 Suzanne Macmillan was employed by Dusol as the solicitor who had the principal carriage of the CBSW proceedings in the period leading to the settlement of those proceedings.2 Lucia Della-Vedova, a member of Della Vedova, was principally responsible for providing instructions on behalf of Della-Vedova to Dusol in relation to the CBSW proceedings.3 8 By letter dated 26 April 2016, Mr Duckham wrote to Ms Della-Vedova proposing a costs agreement and gave a costs estimate of $75,000 in respect of the CBSW proceedings.4 On 26 May 2017, Dusol claimed to have sent Della-Vedova a second costs agreement with an estimate of $150,000 in respect of the CBSW proceedings.5 Both documents provided for Dusol to charge an hourly rate of $473, inclusive of GST, for its director and a senior lawyer having five years or more in practice.6 9 However, in the absence of evidence that Della-Vedova agreed to either costs agreement, and documentary evidence and the oral evidence of Ms Macmillan that the hourly charge out rate was $400 plus GST, the trial judge was not satisfied the costs agreements between Della-Vedova and Dusol were in the terms of the two unsigned costs agreements that were in evidence.7 The trial judge found that the agreement between Della-Vedova and Dusol was that Dusol would charge $400 an hour, not including GST, for work performed by Mr Duckham and Ms Macmillan.8 1 Della-Vedova and Sons v Dusol Pty Ltd Trading as B W Duckham & Co [2025] WASC 160 (primary reasons) [2] - [4]. 2 Primary reasons [12]. 3 Primary reasons [10] - [11]. 4 Primary reasons [30] - [33]. 5 Primary reasons [34] - [37]. 6 Primary reasons [38]. 7 Primary reasons [39] - [50]. 8 Primary reasons [51]. -- 5 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 6 10 As at 31 August 2018, Della-Vedova had paid $66,027.88 to Dusol in respect of amounts then invoiced by Dusol.9 11 On 30 January 2019, Dusol had not issued an invoice to Della-Vedova in respect of its fees since 31 August 2018.10 A letter from Ms Macmillan to Ms Della-Vedova dated 30 January 2019 estimated costs to that date, including the costs of counsel, to be in excess of $200,000. The letter also estimated the further costs of preparing for attending a trial in the range of $65,000 to $85,000, not including the further costs of expert witnesses.11 Ms Macmillan's evidence, which the trial judge accepted, was that she had not calculated the $200,000 costs estimate personally and Dusol's costs records often contained errors.12 12 Ms Della-Vedova met with Mr Duckham at Dusol's offices on 25 February 2019. She executed a deed of settlement of the CBSW proceedings that day in Dusol's offices.13 The trial judge accepted Ms Della-Vedova's evidence that, at this meeting, she told Mr Duckham that an amount in excess of $200,000 for Dusol's costs was far too high for the work Dusol had carried out for Della-Vedova in the CBSW proceedings, and that Della-Vedova was willing to agree to Dusol's costs if they were capped at $100,000 plus the costs of the barrister engaged for the CBSW proceedings. His Honour found that it was implicit in these statements that Della-Vedova disputed that it was obliged to pay $200,000 in costs to Dusol and was unwilling to do so.14 13 By letter dated 12 March 2019, Mr Duckham wrote to Ms Della-Vedova stating:15 I note your request that our fees in relation to this matter not including Counsel fees and disbursements be set at [$100,000] inclusive of GST. I agree to this request upon the proviso that payment be made this month. 14 Dusol issued a statement of account dated 31 March 2019 to Della-Vedova, which included the following entries:16 9 Primary reasons [107]. 10 Primary reasons [55]. 11 Primary reasons [52] - [53]. 12 Primary reasons [54]. 13 Primary reasons [64]. 14 Primary reasons [68] - [78]. 15 Primary reasons [70]. 16 Primary reasons [77]. -- 6 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 7 Sub-total of outstanding fees $200,453.80 Less agreed compromise - [Dusol] ($100,453.80) (*$100,000 inclusive of GST plus disbursements) Sub-total payable to [Dusol] $100,000.00 15 By letter dated 2 April 2019, Mr Duckham threatened to institute legal proceedings against Della-Vedova if the $100,000 that he had agreed to accept and the outstanding counsel's fees were not paid by 13 April 2019.17 16 By letter dated 18 April 2019 Dusol, by Ms Macmillan, confirmed receipt of Della-Vedova's cheque payable to Dusol in the amount of $100,000, together with a cheque in payment of counsel fees. Under cover of that letter, Ms Macmillan enclosed another statement of account, which recorded Dusol's receipt of the $100,000 on 13 April 2019 and again referred to an agreed compromise in the same terms as that stated in the statement of account dated 31 March 2019.18 17 Ms Macmillan left her employment with Dusol at the end of April 2019. She accepted an offer of employment with another firm of solicitors in about early May 2019. In about June 2019, members of the Della-Vedova family attended at the offices of Ms Macmillan's new firm to review and sign some papers. Mr Duckham saw them there. Mr Duckham later came to Ms Macmillan's office and asked what the Della-Vedova family members were doing there. Ms Macmillan told him that they were there regarding Gosnells land holdings, following which Mr Duckham said he was going to have to rethink the arrangement regarding the discount he had given. Ms Macmillan told Mr Duckham that he could not do that. Mr Duckham told her that he could. When she asked on what basis, Mr Duckham told her that 'there was no deed, no written deed', or words to that effect.19 18 The trial judge found that Mr Duckham considered that it was unacceptable that members of the Della-Vedova family had engaged other solicitors. After his conversation with Ms Macmillan, Mr Duckham adopted the position that the agreement he reached with Ms Della-Vedova was not enforceable, not having been made by deed 17 Primary reasons [80]. 18 Primary reasons [81]. 19 Primary reasons [82] - [85] -- 7 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 8 and there otherwise being no consideration for Dusol's agreement to accept $100,000 in satisfaction of its costs.20 19 By writ issued on 1 November 2019, Dusol instituted the District Court costs proceedings, relevantly against Della-Vedova, seeking payment of the balance of the costs it had agreed to forego as a result of the agreement made with Ms Della-Vedova.21 In the District Court costs proceedings, Della-Vedova pleaded a defence that there was a binding agreement between the parties as to the costs of the CBSW proceedings.22 Della-Vedova also pleaded that Dusol had failed to make disclosure in accordance with s 260 of the LPA and that it could not maintain the District Court costs proceedings by virtue of s 268(2) of the LPA unless and until the costs sought by Dusol were assessed. Dusol admitted that allegation in its reply filed on 21 April 2021.23 20 On 4 May 2021, Dusol commenced the assessment proceedings in the General Division of this court seeking an assessment of its costs in the CBSW proceedings. By email to Dusol's solicitors dated 11 May 2021, Della-Vedova's solicitors said that it was necessary for the parties to have the claims regarding the alleged compromise determined before any assessment of Dusol's claimed costs. On 25 May 2021, Della-Vedova filed an unconditional appearance in the assessment proceedings. 21 By letter dated 11 June 2021, Della-Vedova's solicitors contended that, if the assessment proceedings were determined first, the costs assessment would take effect as a judgment of this court by operation of s 305 of the LPA. They expressed concern that this would cause Della-Vedova's defences in the District Court action to be rendered nugatory. They anticipated Della-Vedova commencing proceedings in this court for the determination of its defences and an interim stay of the assessment proceedings.24 22 By letter dated 5 July 2021, Dusol's solicitors advised that they considered that the appropriate course was for the District Court costs proceedings to be discontinued, having regard to s 268(2) of the LPA.25 20 Primary reasons [86]. 21 Primary reasons [87]. 22 Primary reasons [91]. 23 Primary reasons [88]. 24 Primary reasons [92]. 25 Primary reasons [93]. -- 8 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 9 23 On 12 July 2021, Dusol was granted leave to discontinue the District Court costs proceedings and the proceedings were discontinued save as to costs. 24 On 20 August 2021, Della-Vedova commenced the primary proceedings, seeking a declaration that it is not liable to pay any further amount to Dusol in relation to the CBSW proceedings, together with a permanent injunction restraining Dusol from taking any further step in the assessment proceedings.26 25 On 11 October 2021, Acting Registrar Hosking ordered in the assessment proceedings that the assessment be adjourned sine die, pending the determination of the primary proceedings.27 Course of the trial 26 The trial took place before the trial judge on 3 February 2025. Della-Vedova called Ms Della-Vedova and Ms Macmillan as witnesses. His Honour found both to be honest and credible witnesses, although he found Ms Della-Vedova to be mistaken in one aspect of her evidence.28 27 Mr Duckham did not give evidence at trial. Dusol did not call any other witnesses.29 28 The circumstances in which Mr Duckham did not give evidence were unusual. Mr Duckham acted as counsel for Dusol in the primary proceedings. Della-Vedova objected to him doing so when he was a material witness in the trial. The trial judge dismissed a pre-trial application to enjoin Mr Duckham from acting as counsel for Dusol on the basis of an undertaking by Mr Duckham to the court that he would not give evidence at the trial. At trial, the trial judge correctly prevented attempts by Mr Duckham to circumvent this undertaking by tendering his affidavits at trial as evidence of the truth their contents.30 29 The trial judge reserved his decision at the conclusion of the trial and delivered the primary reasons on 6 May 2025. A further hearing as to the form of the orders and costs was conducted on 19 June 2025, with further written submissions filed on 25 June 2025. The trial judge 26 Primary reasons [8]. 27 Primary reasons [95]. 28 Primary reasons [10] - [12]. 29 Primary reasons [13]. 30 Primary reasons [14] - [27]. -- 9 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 10 published supplementary reasons as to the form of orders and costs on 21 July 2025.31 Trial judge's approach 30 The evidence at trial established that, on 12 March 2019, Mr Duckham for Dusol accepted the oral offer made by Ms Della-Vedova for Della-Vedova on 25 February 2019. The offer was that Della-Vedova pay $100,000 plus counsel's fees in satisfaction of the outstanding legal costs claimed by Dusol. The evidence also established that this agreement was implemented by Della-Vedova paying $100,000 plus counsel fees to Dusol on 13 April 2019. A central issue in dispute was whether the costs settlement agreement was supported by consideration. 31 The trial judge identified two independent bases for finding the costs settlement agreement was supported by consideration. First, the agreement to pay $100,000 plus counsel's fees was in settlement of a bona fide dispute as to the amount of fees due by Della-Vedova to Dusol. Second, at the time the agreement was entered into, Dusol had no present entitlement to its claimed outstanding fees. By reason of Dusol's failure to comply with its costs disclosure obligations under the LPA, Della-Vedova was not obliged to pay any amount in respect of costs to Dusol until those costs had been assessed and, further, the taxing officer had determined whether to reduce them pursuant to s 268(4) of the LPA. Consideration was constituted by the payment of a lesser amount at an earlier time than when payment was due in a way that avoided Dusol having to devote resources to the assessment of its costs.32 32 The trial judge rejected Dusol's contention that Della-Vedova entering an unconditional appearance in the costs assessment proceedings gave rise to defences of acquiescence, waiver, election or estoppel: 1. His Honour found that Della-Vedova had not acquiesced by standing by and allowing Dusol to breach the agreement in circumstances where:33 [A]t all times [Dusol] knew that [Della-Vedova] did not intend to abandon the agreement it had made with [Dusol] by filing the 31 Della-Vedova and Sons v Dusol Pty Ltd Trading as B W Duckham & Co [2025] WASC 160 (S) (supplementary reasons). 32 Primary reasons [106] - [118]. 33 Primary reasons [123] - [127]. -- 10 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 11 appearance in the assessment proceedings. At the time [Dusol] commenced the assessment proceedings, [Della-Vedova's] case in the ongoing District Court costs proceedings was that there was a binding agreement between the parties as to the costs of the CBSW proceedings, and [Della-Vedova] made clear in its correspondence of 11 and 25 May 2021 that the validity of that agreement had to be determined before [Dusol's] costs could be assessed. Once [Dusol] discontinued the District Court costs proceedings, [Della-Vedova] commenced these proceedings, and obtained a stay of the assessment proceedings pending their determination. 2. There was no pleading or evidence of consideration for any waiver, so that it could be revoked upon reasonable notice at any time and was revoked by the institution of the primary proceedings.34 3. The filing of an appearance in the assessment proceedings did not constitute an election between inconsistent rights. This was because taking steps to oppose the assessment of Dusol's costs was not inconsistent with Della-Vedova's claim in the District Court costs proceedings that there had been a binding agreement regarding the amount of costs to be paid, and because Della-Vedova had not pursued either the District Court costs proceedings or the assessment proceedings to a conclusion.35 4. The unpleaded and ill-defined estoppel claim failed in circumstances where there had been no change of position by Della-Vedova and Dusol, through its counsel, admitted that it had suffered no detriment from commencing the assessment proceedings.36 33 The trial judge also rejected a pleading by Dusol that Della-Vedova had engaged in unconscionable conduct.37 As that conclusion does not appear to be challenged in this appeal, it is unnecessary to say anything more about this aspect of his Honour's reasons. 34 For these reasons, the trial judge found that the agreement between the parties was made for valuable consideration and the various 34 Primary reasons [128] - [129]. There is an evident typographical error at [129] which we have corrected in this passage. 35 Primary reasons [130] - [131]. See also the additional reasons given at [132] - [133]. 36 Primary reasons [135] - [144]. 37 Primary reasons [145] - [168]. -- 11 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 12 grounds relied upon by Dusol, pleaded or otherwise, to avoid that agreement failed. The trial judge said that judgment would be entered for Della-Vedova, and that he would hear the parties as to the precise form of the orders to be made, and as to costs.38 35 The trial judge ordered Dusol to pay Della-Vedova's costs of the primary proceedings on a party/party basis, as Della-Vedova was the successful party which had not failed on any significant issue at trial.39 36 The trial judge also decided to order that Mr Duckham be jointly and severally liable with Dusol for the costs of the primary proceedings. This was essentially on the basis that: 1. Mr Duckham, the sole director of Dusol, informed the court that Dusol was not able to meet an order for costs against it.40 2. Mr Duckham played an active role in the primary proceedings, and was a 'real party' to it, in the sense that his involvement in the litigation went well beyond that of a mere director of a defendant company. It was his decisions, as the director of Dusol, the sole witness as to its version of events, the solicitor with the conduct of the matter and counsel at trial, which led to the primary proceedings and caused Della-Vedova to incur the costs of them.41 3. Although the court was unable to determine whether Mr Duckham had a direct financial interest in the outcome of the proceedings,42 he had a direct personal interest in the proceedings, which raised questions as to his credibility and whether Mr Duckham is a man who honours the agreements that he makes, irrespective of whether he is legally obliged to do so.43 37 The trial judge concluded: In all the circumstances of this case, it would be profoundly unjust were [Della-Vedova] to be left with an order for costs against [Dusol] when [Dusol] is unable to meet all or any part of the award of costs. Mr Duckham's involvement in the proceedings has been such that it is just and reasonable that he reimburse [Della-Vedova] for the costs of 38 Primary reasons [169] - [170]. 39 Supplementary reasons [9] - [20]. 40 Supplementary reasons [32]. 41 Supplementary reasons [34] - [48]. 42 Supplementary reasons [49] - [58]. 43 Supplementary reasons [59]. -- 12 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 13 the consequences of his views as to the validity of the agreement he made on [Dusol's] behalf, if [Dusol] cannot pay them. I therefore consider that the appropriate order is that Mr Duckham be jointly and severally liable with [Dusol] for the costs of the action. Primary orders 38 On 21 July 2025, the court made the following substantive primary orders in the primary proceedings: 1. It is declared that: (a) the partly oral and partly written agreement made 12 March 2019 between [Della-Vedova] by Lucia Della-Vedova and [Dusol] by Bruce William Duckham to the effect that [Della-Vedova] pay $100,000 inclusive of goods and services tax in settlement of any liability [Della-Vedova] might have to [Dusol] in respect of legal costs and disbursements incurred in relation to [the District Court costs proceedings] is valid and effective; (b) payment of that amount having been made by [Della-Vedova], [Della-Vedova] has no liability to [Dusol] in respect of legal costs and disbursements incurred in relation to that action. 2. [Dusol] be enjoined and a permanent injunction is hereby granted restraining [Dusol] by its servants, agents or otherwise from taking any further step in [the assessment proceedings], save for being heard as to the costs of those proceedings. 39 Orders 3 and 4 of the primary orders required Dusol and Mr Duckham to jointly and severally pay Della-Vedova's costs of the primary proceedings. The appeal to this court 40 Dusol appealed against the primary orders by appeal notice filed on 7 August 2025. The appeal notice stated that leave to appeal was not required. Mr Duckham was not an appellant or otherwise made a party to the appeal. 41 The appellant did not file an appellant's case by 11 September 2025 as required by the CoA Rules, or by the subsequently extended times for doing so. The unhappy history of the appeal proceeding up to 10 December 2025 is summarised in this court's decision of that date -- 13 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 14 (Dusol [No 1]).44 Documents lodged by Dusol for filing were not accepted for filing as they did not comply with the CoA Rules. 42 On 10 December 2025, this court convened to consider whether the appeal should be dismissed by reason of Dusol's failure to file and serve an appellant's case. The court also heard Dusol's application for a review of the acting Court of Appeal registrar's decision not to accept a document lodged as an appellant's case for filing. 43 In Dusol [No 1], this court dismissed Dusol's review application, on the basis that the registrar was correct to conclude that the document lodged as the appellant's case did not comply with the CoA Rules. Most significantly:45 The grounds of appeal in the purported appellant's case lodged 7 November 2025 conspicuously failed to meet the requirements for a ground of appeal under r 32(4) of the [CoA Rules]. There was no proper identification of the issues for determination. [Della-Vedova] and the court were left to speculate on the precise error that was being alleged. 44 This court also decided that Dusol should be given a further opportunity to file a compliant appellant's case. However, the court observed:46 However, given the history of the appeal - and in particular that [Dusol] had already been afforded a substantial extension of time to file its appellant's case - we considered that this should be a final opportunity to file a compliant appellant's case. The extension of time was to be subject to a self-executing order. If [Dusol] failed to avail itself of this opportunity, and did not file a compliant appellant's case by the extended time we provided for, the appeal would automatically be dismissed. … [Dusol] sought until the middle of January 2026 to file its appellant's case. Having regard to the potentially serious consequences of the self-executing order, we allowed an extension of time for the period sought by the appellant. In considering that extension we took into account the upcoming break over the festive season as well as the time that has already passed for the appellant to prepare the appellant's case. (original emphasis) 44 Dusol Pty Ltd trading as B W Duckham & Co v Della-Vedova and Sons [2025] WASCA 185 (Dusol [No 1]) [9] - [12]. 45 Dusol [No 1] [25]. 46 Dusol [No 1] [29], [31]. -- 14 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 15 45 The court made the following orders in the appeal on 10 December 2025: 1. The time for [Dusol] to file and serve an appellant's case (such appellant's case to be compliant with the [CoA Rules] is extended to 4 pm on Thursday, 15 January 2026; and [Dusol] is to file and serve the appellant's case by that time. 2. If [Dusol] does not comply with order 1: (a) the appeal is dismissed; (b) [Dusol] is to pay [Della-Vedova's] costs of the appeal, including any reserved costs, such costs to be assessed. 46 As Dusol did not file an appellant's case that complied with the CoA Rules by 4 pm on 15 January 2026, this appeal was dismissed by operation of order 2 of the above orders at that time. 47 On 1 April 2026, Dusol applied for a further extension of time to file its appellant's case. This is the application we are currently considering. In his affidavit in support of this application, Mr Duckham annexes correspondence with the Court of Appeal office as well as a minute of proposed appellant's case which he prepared. Mr Duckham deposes that a paralegal employed by his current incorporated legal practice 'has been afflicted with a medically diagnosed injury limiting her capacity to produce and secretarial production has been delayed'. General principles 48 The principles governing the determination of an application to extend time for compliance with a springing order were summarised by this court in A v C [No 2],47 in the following terms: It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. … There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that 47 A v C [No 2] [2015] WASCA 199 [2] - [4]. -- 15 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 16 discretion, the Court will normally have regard to at least the following matters: (1) the circumstances in which the springing order came to be made; (2) the reason for non-compliance with the springing order; (3) the prejudice to the defaulting party if the time were not extended; and (4) the prejudice to the other party if the time were extended. It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.] (citations omitted) Disposition 49 The springing order in this case was made four months after the appeal was instituted, in a context where Dusol had failed to comply with its obligation under the CoA Rules to file a compliant appellant's case. While Dusol attempted to file an appellant's case, the documents lodged for filing conspicuously failed to comply with important requirements of the CoA Rules. Dusol was an incorporated legal practice represented by Mr Duckham, its director, who is a legal practitioner of long standing. It ought to have been in a position to comply with the CoA Rules and, in any event, had been given advice as to the requirements by correspondence from the Court of Appeal office when the appeal was commenced and from the court when Dusol [No 1] was determined. 50 The springing order gave Dusol a generous further extension of time to file a compliant appellant's case, in circumstances where the court made it clear that what was being given was a final opportunity to file a compliant appellant's case. Dusol failed to take advantage of that final opportunity and has not given any adequate explanation for its failure to do so. It waited a further two and a half months after the appeal was dismissed pursuant to the springing order before seeking an extension of time to comply with the order. There is no adequate explanation for that further delay. It is now over nine months since the appeal was commenced. These factors count against granting the application for a further extension of the time for filing an appellant's case. -- 16 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 17 51 If an extension of time is not granted, Dusol will lose the opportunity to challenge the primary orders. There is no evidence of specific prejudice that would be suffered by Della-Vedova if an extension is granted. 52 However, it is relevant to note that the subject matter of the appeal is the enforceability of an agreement about the amount an incorporated legal practice would accept in satisfaction of legal costs it claimed to be owing to it by a client in circumstances where there is no dispute that the costs settlement agreement was reached. Even assuming the appeal has merit, the prejudice to Dusol is that it will be held to the agreement it made. Further, the agreement was reached in February and March 2019, over seven years ago. Della-Vedova has suffered the general prejudice of being subject to, or forced into, litigation about the enforceability of the costs settlement agreement and the attendant cost and uncertainty associated with that litigation over that extended period. Overall, the respective prejudice to the parties if an extension is or is not granted tends to favour the refusal of an extension. 53 A factor counting in favour of the grant of a further extension of time is that Dusol did not ignore the requirements for the filing of an appellant's case and made repeated, albeit incompetent, attempts to comply with those requirements. Further, the draft appellant's case attached to Mr Duckham's affidavit in support of the extension application is in a form that sufficiently complies with the CoA Rules to enable it to be accepted for filing. If a further extension of time was granted, Dusol is now in a position to file a compliant appellant's case within a very short period. 54 However, while the grounds of appeal in the latest draft appellant's case sufficiently comply with the formal requirements of the CoA Rules, none of them have any reasonable prospects of succeeding. The proposed grounds have no reasonable prospects of success for the following reasons. Proposed ground 7: apprehended bias 55 Proposed ground 7 in effect asserts that the trial judge's findings against Dusol on various issues give rise to a reasonable apprehension of bias. The matters identified in the proposed ground which are the subject of this complaint are: 1. The trial judge's finding that Della-Vedova's failure to use the phrase 'accord and satisfaction' in a statement of claim which -- 17 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 18 pleaded all necessary material facts was not fatal to its claim for relief.48 2. The trial judge's statement that, in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788,49 the plurality made clear that, in general, a statement of intention by a party not to exercise a right does not extinguish the right unless supported by consideration, so that an expressed waiver of a right may generally be revoked upon reasonable notice at any time.50 3. The trial judge's findings as to the appellant's interest in the proceedings noted at [36.3] above. 56 Dusol's written submissions in support of this ground make various other complaints which are outside the scope of the proposed ground in contending that the trial judge 'ruled unevenly in favour of' Della-Vedova in the primary and supplementary reasons. 57 This proposed ground, which in effect invites the court to conclude that an apprehension of bias arose from the trial judge making findings against Dusol, is entirely without merit. 58 Reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said that might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.51 The test is objective and the fair-minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.52 However, the observer is cognisant of human frailty and understands that information and attitudes consciously and 48 Primary reasons [104]. 49 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445 [28] - [32]. 50 Primary reasons [128]. 51 See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] - [60]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 [37] - [38], [67], [162], [194], [225]. 52 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12]. -- 18 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 19 conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.53 59 As this court has previously noted in G v W:54 As this court recently noted in KWLD v The State of Western Australia,55 the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision was taken. Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.56 There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision. The decision of the Queensland Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd provides an example of such a case.57 However, there is a difference between apprehending bias in the decision-making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process. The mere fact that a reviewing court does not agree with the reasoning of the decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.58 60 Nothing in the High Court's recent decision in SunshineLoans Pty Ltd v Australian Securities and Investments Commission,59 on which Dusol's written submissions rely, is inconsistent with the above well-established principles. 53 Ebner [8]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171]. 54 G v W [2021] WASCA 180 [62] - [63]. 55 KWLD v The State of Western Australia [2020] WASCA 94 [104]. 56 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33], [67] - [68]. 57 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 QR 271 [77] - [102]. While this decision was overturned on appeal, the High Court did not doubt the Queensland Court of Appeal's reasoning as to apprehended bias: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33. It is unnecessary to address the question of whether Sofronoff P was correct, at [103], to regard the fact that the member determined some issues in favour of a party as relevant in that case. 58 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [99] (Kirby J). While Kirby J's observations were made in relation to the review of administrative decisions, they apply equally to allegations of actual bias by a judge. 59 SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8. -- 19 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 20 61 In the present case, Dusol contends that an apprehension of bias arises merely from findings made by the primary judge. That contention is unsustainable and must be rejected as unarguable. Proposed grounds 1 and 4: challenge to findings about consideration 62 Proposed grounds 1 and 4 appear to attack the trial judge's finding that the costs settlement agreement was supported by consideration and was therefore enforceable as a matter of contract. 63 Proposed ground 1 attacks an intermediate factual finding made by the trial judge, rejecting Dusol's assertion that it had a 'prima facie costs entitlement … was in excess of $200,000' as at the date of the agreement.60 The written submissions in support of the ground indicate it is based on insufficient weight being given to the documentary evidence as to Dusol's claims for outstanding fees. 64 This proposed ground misapprehends what the trial judge decided. His Honour rejected the proposition that Dusol had any prima facie entitlement to its costs on the basis that it had not complied with its costs disclosure obligations under the LPA. That unchallenged conclusion establishes the second basis for the trial judge's finding of consideration noted at [31] above. The first basis for the trial judge's finding of consideration did not depend on the rejection of Dusol's reliance on a 'prima facie entitlement' to $200,000, but rather on the existence of a genuine dispute as to the amount due.61 65 Proposed ground 4 contends that the trial judge erred in law in finding an accord and satisfaction 'without taking into account the Background'. The written submissions in support of this ground identify the 'Background' as a communication from Dusol to Della-Vedova dated 25 November 2021 which is alleged to have stated: If for any reason it is prima facie enforceable, it was made against the implied background that after an association of 40 years, any discount would be accompanied by continuing patronage, the opposite has transpired. 66 Nothing in this 'Background' is capable of affecting the trial judge's conclusion that Della-Vedova gave consideration for Dusol's agreement to accept $100,000 in satisfaction of the claimed amount of about $200,000 in outstanding legal costs. There was no arguable error in failing to refer to this correspondence in reaching this conclusion. 60 See primary reasons [106], [109] - [111] and [147]. 61 See primary reasons [111]. -- 20 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 21 67 It was not in dispute at trial or on appeal that, because of its failure to comply with its costs disclosure obligations, Dusol could not recover its claimed costs without an assessment. The finding that Della-Vedova disputed the outstanding amount of about $200,000 claimed by Dusol was a credit-based finding based on the uncontradicted evidence of Ms Della-Vedova which is not glaringly improbable or contrary to compelling inferences. There is no realistic prospect of that factual finding being overturned on appeal.62 Given these unchallenged or undisputable findings, the trial judge's ultimate conclusion that the costs settlement agreement was supported by consideration was plainly correct. As the trial judge correctly held, the immediate payment of $100,000 by Della-Vedova to Dusol constituted good consideration for Dusol's promise to accept that amount in satisfaction of its claim to payment, both because the agreement constituted the settlement of a bona fide dispute as to the amount due to Dusol, and because the payment of a lesser amount at an earlier time than when payment was due constituted good consideration. The proposed grounds challenging that conclusion have no reasonable prospect of succeeding. Proposed grounds 2, 3 and 6: acquiescence, waiver, election or estoppel 68 Proposed grounds 2, 3 and 6 apparently seek to challenge the trial judge's rejection of Dusol's defences based on Della-Vedova filing an unconditional appearance in the assessment proceedings. 69 These aspects of the defence at trial, and the proposed grounds of appeal to this court, proceed on a fundamental misconception of the nature and effect of an unconditional appearance. 70 Order 12 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) provides for a defendant to an action to enter an appearance to an action and defend it. Order 12 r 6(1) provides for entry of a conditional appearance in the following terms: A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule. 62 See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] - [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]. -- 21 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 22 71 Dusol relies on the often-cited statement of Gibbs CJ in Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad that:63 As a general rule an unconditional appearance amounts to a submission to the jurisdiction of the court and to a waiver of irregularity, eg in the manner of service. 72 However, in the present case there was no issue as to the jurisdiction of the Supreme Court to undertake a costs assessment, or of the validity or service of the application for assessment. The filing of an unconditional appearance does not involve any implicit acceptance that a claim advanced in an originating process has merit or is maintainable. Della-Vedova filing an unconditional appearance in the assessment proceedings did not involve any waiver of its right to plead the costs settlement agreement as an accord and satisfaction, and was not inconsistent with its assertion that the costs settlement agreement had that effect. For this reason, in addition to the reasons relied on by the trial judge, Dusol's defences based on the filing of an unconditional appearance in the assessment proceedings were misconceived and without merit. The grounds of appeal which assert various errors in the trial judge's reasoning to his Honour's conclusion that the defences were not established have no reasonable prospect of successfully impugning that ultimate conclusion. Proposed ground 8: costs award against Dusol 73 Proposed ground 8 seeks to challenge the order that Dusol pay Della-Vedova's costs of the primary proceedings. 74 An immediate difficulty with this ground of appeal is that, under s 60(1)(e) of the Supreme Court Act 1935 (WA), no appeal lies without leave from an order as to costs only which by law were left to the discretion of the trial judge. Leave to appeal is required whenever the challenge to the order as to costs goes beyond the mere consequence of the outcome of a substantive appeal on the merits. That is so even if, as in the present case, the appeal against the costs order is brought together with an appeal against substantive orders.64 75 Dusol has not sought leave to appeal, either by answering 'yes' to the leave question in its appeal notice or otherwise. In the absence of 63 Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, 539, applied in cases such as the recent decision of this court in King v Smith [2025] WASCA 6 [128] - [134]. 64 Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167 [94] - [105] (Newnes JA, Martin CJ & Beech J agreeing). -- 22 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 23 an application for leave to appeal, the appeal should be dismissed as incompetent.65 76 In any event, leave to appeal should not be granted even if leave were to be sought. The principles governing the grant of leave to appeal from costs orders were summarised in Hooper v Cockles Pty Ltd [No 2],66 and need not be repeated here. The following considerations combine compellingly to indicate that leave to appeal should be refused: 1. In a context where the requirement for leave is designed to discourage satellite litigation as to costs, the costs order in the present case was made in the context of litigation about legal costs. It will seldom be in the interests of justice to grant leave to appeal from a costs order made in a costs dispute. 2. The proposed ground of appeal does not raise any question of principle or general public importance. 3. The order that Dusol pay Della-Vedova's costs of the primary proceedings was an entirely orthodox exercise of the costs discretion, given that Della-Vedova was wholly successful in obtaining the relief it sought and all of the issues considered by the trial judge were determined in its favour. It cannot reasonably be said that the trial judge made an error in principle or acted on a manifestly erroneous view of the facts or that the order is unreasonable or plainly unjust. 77 Ground 8 contends that the order was in error 'insofar as [Della-Vedova] was successful in issues not pleaded and there was no substantial trial on other balance issues'. The ground, and the written submissions in support of it, are opaque but do not provide any proper basis for doubting the correctness of the trial judge's discretionary decision, much less for this court to interfere with the exercise of the discretion. Proposed ground 5: costs order against Mr Duckham 78 Proposed ground 5 seeks to challenge the order that Mr Duckham be jointly and severally liable for Della-Vedova's costs of the primary proceedings. However, Mr Duckham has not sought to appeal against that order and Dusol has no standing to appeal against the order to the 65 See, for example, Zaghloul v Woodside Energy Ltd [2018] WASCA 191 [26] (Allanson J, Murphy & Mitchell JJA agreeing). 66 Hooper v Cockles Pty Ltd [No 2] [2025] WASCA 157 [22] - [28]. -- 23 of 24 -- [2026] WASCA 67 REASONS OF THE COURT Page 24 extent that it adversely affects only Mr Duckham's interests. In these circumstances, it is sufficient to note that nothing in Dusol's written submissions in support of this ground provides any proper basis for doubting the correctness of the trial judge's order that Mr Duckham be jointly and severally liable for Della-Vedova's costs. Indeed, we agree that it was plainly appropriate to make the order for the reasons which his Honour gave. Orders 79 For the reasons explained above, none of Dusol's proposed grounds of appeal have any reasonable prospect of succeeding. This is a case where there is no point in resuscitating an appeal that is devoid of merit. Given that, and the matters referred to at [49] - [53] above, it is not in the interests of justice to grant Dusol a further extension of time to file its appellant's case. 80 At the conclusion of the hearing of Dusol's application for a further extension of time, we therefore made the following orders: 1. The appellant's application in an appeal filed on 1 April 2026 is dismissed. 2. The appeal remains dismissed pursuant to order 2(a) of the orders made by the court on 10 December 2025. There was no need to make any costs order in relation to the application, as those costs are encompassed within the costs order made in order 2(b) of this court's orders of 10 December 2025. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. TI Associate to the Hon Justice Mitchell 15 MAY 2026 -- 24 of 24 --