WHYMARK NOMINEES PTY LTD -v- MITCHELL [2026] WASC 165

[2026] WASC 165 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : WHYMARK NOMINEES PTY LTD -v- MITCHELL [No 3] [2026] WASC 165 CORAM : HILL J HEARD : 4 & 20 MARCH 2026 (WRITTEN SUBMISSIONS 7 APRIL 2026) DELIVERED : 1 MAY 2026 FILE NO/S : CIV 2074 of 2019 BETWEEN : WHYMARK NOMINEES PTY LTD First Plaintiff TANK CHEK (WA) PTY LTD Second Plaintiff AND ANDREW DEAN MITCHELL Defendant Catchwords: Practice and procedure - Defendant's further application to vary undertakings - Whether undertakings should be varied to enable payment of defendant's legal costs - Whether defendant has made sufficient disclosure of his assets - Whether defendant has discharged onus in relation to quantum of legal costs and that estimated costs are reasonable - Turns on own facts -- 1 of 10 -- [2026] WASC 165 Page 2 Legislation: Rules of the Supreme Court 1971 (WA) O 52A r 2 Result: Undertakings varied to allow payment of existing legal costs of $21,945 and future legal costs of $20,000 Category: B Representation: Counsel: First Plaintiff : R W Douglas Second Plaintiff : R W Douglas Defendant : R A Blow Solicitors: First Plaintiff : Couldwell Legal Second Plaintiff : Couldwell Legal Defendant : Cove Legal Case referred to in decision: Whymark Nominees Pty Ltd v Mitchell [No 2] [2025] WASC 463 -- 2 of 10 -- [2026] WASC 165 HILL J Page 3 HILL J: 1 On 7 November 2025, I delivered reasons for decision on the plaintiffs' application for a continuation of freezing orders made on 8 August 2025, and the defendant's application to vary the undertakings given by him on 17 July 2025 and his former solicitors on 11 July 2025 (Undertakings).1 2 In the Primary Reasons, I accepted the Undertakings should be varied to enable payment of the defendant's reasonable legal costs in both these proceedings and in separate criminal proceedings. However, at that time, I was not satisfied the defendant had adduced evidence as to the basis of the costs estimate, nor the timeframe over which these costs were to be incurred. On this basis, I limited the variation of the Undertakings to the amount of $72,667.75. In the Primary Reasons, I specifically noted that the defendant was required to establish the proposed expenditure was reasonable and that:2 If the defendant wishes to obtain an order to further vary the Undertakings, this will need to be supported by detailed evidence that sets out the basis for the estimate and when costs are likely to be incurred. 3 Orders were made for the filing of further affidavits and the defendant's application adjourned until 17 December 2025. Prior to this date, on 8 December 2025, the parties filed a minute of consent orders providing for the following payments to be made from the Proceeds: (i) Cove Legal as to the costs already invoiced to the defendant in these proceedings up to a maximum further amount of $62,206.45; (ii) Cove Legal as to the costs of preparing a defence and counterclaim, responding to a strike out of the defence and security for costs, and discovery in these proceedings up to a maximum further amount of $19,000; and (iii) D.G. Price & Co as to the costs of a hearing in November 2025, and a possible second stay application, each in that criminal prosecution identified in the affidavit of Andrew Mitchell sworn 12 September 2025 up to a maximum further amount of $53,735. 1 Whymark Nominees Pty Ltd v Mitchell [No 2] [2025] WASC 463 (Primary Reasons). In these reasons, I have adopted the definitions used in the Primary Reasons. These reasons should be read with the Primary Reasons. 2 Primary Reasons [55]. -- 3 of 10 -- [2026] WASC 165 HILL J Page 4 4 Orders were made to this effect and the parties were given liberty to apply. On 9 February 2026, the solicitors for the defendant exercised this right and requested the matter be relisted to seek orders for the release of additional funds. 5 The application was initially listed for hearing on 23 February 2026. However, as a consequence of the late filing of the defendant's affidavit (on 19 February 2026), this hearing was vacated and the matter listed on 4 March 2026 to enable the plaintiffs to file responsive material. 6 A short hearing took place on 4 March 2026. At this hearing, the court raised a number of deficiencies in the material that had been filed. As a result, the defendant requested the hearing be adjourned and directions made for the filing of further material. The court acceded to this request and as a result, adjourned the hearing until 20 March 2026 and made orders for the filing of further materials. 7 At the conclusion of the hearing on 20 March 2026, the defendant again requested the opportunity to file additional material. Orders were made for both parties to file additional material with the application to be decided on the papers. Orders sought by the defendant 8 Initially, the order sought by the defendant was that the orders of 8 December 2025 be varied to enable the payment of Cove Legal's invoices 'up to a maximum sum such that not less than $75,000 remain in the trust account ledger maintained by Cocks Macnish'. 9 Shortly before the hearing on 20 March, the defendant filed a minute of proposed orders setting out the precise variations to the Undertakings that were sought. 10 Specifically, the defendant sought a variation of order 2 of the orders made on 8 December 2025 to enable the following payments to be made: (a) invoices already issued by Cove Legal totalling $53,405; (b) senior counsel fees (for work predating the orders) up to a maximum of $11,000; (c) further solicitor costs to the date of the orders up to a maximum of $29,700; and -- 4 of 10 -- [2026] WASC 165 HILL J Page 5 (d) future legal fees and disbursements (inclusive of counsel fees) for these proceedings up to a maximum of $65,000. Evidence on the application 11 In support of the application, the defendant filed three affidavits: (a) two affidavits of Roger Blow, the solicitor for the defendant, filed on 19 February 2026 and 9 March 2026; and (b) an affidavit of Andrew Dean Mitchell filed 27 March 2026. 12 The plaintiffs filed two affidavits of their solicitor, Gemma Couldwell, on 4 March 2026 and 9 April 2026, in opposition to the application. 13 The defendant's affidavits addressed two matters: Mr Mitchell's current financial position; and the estimated costs of defending these proceedings. 14 Mr Mitchell's evidence is that since the date of his original affidavits filed in September 2025, he has undertaken some consulting work (between September and December 2025) for which he received net payments of $33,324 and that since February 2026, he has been employed in a role for which he receives an annual wage of $225,000 (ex-super). Mr Mitchell says this remuneration is insufficient to enable him to pay his legal fees (on top of his ordinary monthly expenses).3 15 Mr Blow's initial affidavit annexed a statement issued by Cove Legal stating that an amount of $53,405 was outstanding. The affidavit did not otherwise address or explain the work that these fees related to, why the previous estimate of fees had been so substantially exceeded, or the basis on which it was contended that orders should be made enabling payment of all invoices subject to the balance of the account not being reduced below $75,000. 16 Mr Blow's second affidavit provided some further details of the work that had been undertaken to date, as well as an estimate of the future legal costs that were anticipated to be incurred. In summary, his evidence is that:4 (a) the outstanding invoices of $53,405 include two fee notes from senior counsel for $21,945 for the work from 9 September 2025 3 Affidavit of Andrew Dean Mitchell filed 27 March 2026 [13], [16], [22]. 4 Affidavit of Roger Blow filed 19 February 2026 [7], [10], [12], [13], [14]. -- 5 of 10 -- [2026] WASC 165 HILL J Page 6 until 23 December 2025 in relation to the applications the subject of the Primary Reasons as well as various applications in relation to the defence; (b) the work done by Cove Legal which is the subject of the outstanding invoices (for which fees of approximately $31,500 have been rendered) concern the applications in relation to the defence, as well as updating the defendant on the proceedings and providing advice more generally; (c) the work in progress of $27,090 (ex GST) as at 7 March 2026 concerns the applications in relation to the defence (including as to costs) and the current application before me; (d) he estimates the fees for the work that is required to be undertaken in the next three to four months will total $49,000 to $59,000. This covers this application; the drafting of an amended defence and counterclaim; any further interlocutory applications; and discovery; (e) his best estimate of senior counsel's fees over the next three to fourth months will be between $5,000 and $10,000; and (f) as at 3 March 2026, the amount of the Proceeds retained in trust is $178,643.62. Should there be any further variation to the Undertakings? 17 In essence, the defendant says he should be entitled to access the funds which are the subject of the Undertakings to the extent that these funds are required to pay his costs of these proceedings. In his submission, the substantial costs he has incurred in these proceedings are a consequence of the plaintiffs' actions, and that the plaintiffs should not be entitled to control the manner in which he defends these proceedings. 18 The plaintiffs deny any variation to the Undertakings should be made at this stage. In their submission, the defendant has not explained why he has made no contribution to his outstanding legal costs from the income he has earnt over the past six months and has failed to disclose any superannuation funds as an asset, despite this being raised by the plaintiffs. In addition, the plaintiffs say there is no explanation as to why the actual costs have varied so extensively from the original estimates, and the evidence filed by the defendant is insufficient to -- 6 of 10 -- [2026] WASC 165 HILL J Page 7 establish the amounts sought are reasonable. The plaintiffs also say the court 'should not lend its hand to prefer one creditor of an apparently insolvent estate and thereby frustrate Federal bankruptcy law'.5 19 In my view, the submissions of each of the parties to a significant extent fail to take account of the principles that govern this application as set out in the Primary Reasons, or why the court was only prepared to make somewhat limited orders on 7 November 2025. The relevant principles can be summarised as follows. 20 First, the purpose of a freezing order is not to secure priority for a plaintiff or prevent a defendant paying their debts. Its purpose is to prevent the defendant transferring assets and frustrating a monetary judgment. 21 Second, the Undertakings can be varied for the purposes of meeting the defendant's reasonable costs of these proceedings where the defendant has no other assets to which resort can be had. In order to vary the Undertakings, the defendant is required to provide evidence of the basis for these costs and a timeframe over which they will be incurred. 22 At the time of the original hearing (that was the subject of the decision in the Primary Reasons), the defendant's evidence was that his monthly expenses (which included the expenses of his wife) were in the region of $5,000 to $6,000 and that his wife earned approximately $3,750 a month. On this basis, he contended there was a monthly shortfall of approximately $2,000 to $3,000 per month.6 23 Since that time, the defendant has undertaken a consultancy for which he received a net payment of approximately $33,000,7 and has obtained full time employment for which he is paid almost $12,000 per month.8 In addition, the bank statements produced by the defendant show receipt of at least two substantial amounts (totalling more than $30,000),9 for which no explanation has been provided. 24 In relation to the costs of the proceedings, on the evidence before me, it is not possible to assess whether the invoices for which payment is sought are reasonable, or why the costs so significantly differ from 5 Plaintiffs' reply submissions in opposition to defendant's second application for release from undertaking filed 7 April 2026. 6 Affidavit of Andrew Dean Mitchell filed 12 September 2025 [28]. 7 Affidavit of Andrew Dean Mitchell filed 27 Mach 2026 [16]. 8 Affidavit of Andrew Dean Mitchell filed 27 Mach 2026 [17]. 9 Affidavit of Andrew Dean Mitchell filed 27 March 2026 page 21, page 23. -- 7 of 10 -- [2026] WASC 165 HILL J Page 8 the original estimates provided by Mr Blow. I also note that there is no evidence before the court as to whether there is a costs agreement between the defendant and his solicitors which requires the defendant to pay fees on a basis other than that set out in the relevant Costs Determination. That said, it is clear from the court file that significant work has been done in relation to the applications before Acting Registrar Millman which required numerous court appearances. At this stage, no costs order has been made in relation to those applications nor is it appropriate, in my view, for the court to reconsider the merits of these applications and whether these applications should have been brought. 25 On balance, for the following reasons, it is my view that there should be a limited variation to the Undertakings to allow: (a) payment of senior counsel's fees of $21,945; and (b) payment of $20,000 for future legal costs up to the conclusion of discovery. 26 First, while I accept that the defendant has incurred and is likely to incur substantial costs in defending these proceedings, I do not accept that the Proceeds are the only source of funds available to the defendant to meet these costs. On the defendant's evidence: (a) from the consultancy fees he has received, he is able to make a lump sum payment towards the legal costs already incurred; and (b) after allowing for payment from his income of the shortfall of the monthly expenses, he is able to contribute between $9,000 and $10,000 a month to his ongoing legal costs. 27 That said, I accept the defendant's income is unlikely to be sufficient to meet the reasonable costs already incurred or the entirety of his anticipated future costs. In these circumstances, the interests of justice require a limited amendment to the Undertakings to prevent them being unjust. 28 Second, from a review of the court record in relation to the applications before Acting Registrar Millman, as well as the applications which are the subject of the Primary Reasons, I can form a view as to whether the fee notes of senior counsel are reasonable. Given the number of appearances and the work that has been done, on their face, it is my view that these fee notes appear reasonable. -- 8 of 10 -- [2026] WASC 165 HILL J Page 9 29 Third, it is not clear as to the basis on which any future fees of senior counsel has been estimated. I also note that senior counsel has not signed the most recent defence and counterclaim filed by the defendant. On this basis, I do not consider the defendant has discharged his onus in establishing that any allowance should be made for the future fees of senior counsel. 30 Fourth, I accept that the estimated future fees of $50,000 to $60,000 until the conclusion of discovery cover the next stages of the proceedings. These are estimated to occur over three to four months. A significant portion of these costs can, in my view, be met from the defendant's income, as summarised at [26]. Given this, I consider it likely that there will be only a limited shortfall. In my view, the interests of justice require the Undertakings to be varied to enable this shortfall to be met. Conclusion 31 For these reasons, I have concluded that order 2 of the Orders made on 26 November 2025 (as varied on 8 December 2025) be further varied to allow payment of senior counsel's fees of $21,945, and $20,000 for future legal costs up to the conclusion of discovery. The parties should have liberty to apply. 32 Regrettably, notwithstanding my concluding comments in the Primary Reasons, both parties have continued to file significant numbers of documents and spend significant time and costs on interlocutory applications. This will inevitably lead to a diminishment of the defendant's assets and the possibility that even if the plaintiffs succeed at trial, they will be unable to recover any significant sum from the defendant. I reiterate the view expressed in the Primary Reasons that both parties (and their solicitors and counsel) should focus on progressing the matter to trial in a manner which is consistent with O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA). -- 9 of 10 -- [2026] WASC 165 HILL J Page 10 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VA Associate to the Honourable Justice Hill 1 MAY 2026 -- 10 of 10 --