RENAE MICHELLE SYME AS PERSONAL REPRESENTATIVE OF GRAEME JOHN WHITE -v- GRAEME JOHN WHITE, BRIAN PETER WHITE AND GAVIN MATHEW WHITE AS PARTNERS IN THE PARTNERSHIP TRADING AS THE PE WHITE AND SONS PARTNERSHIP [2026] WASC 161

[2026] WASC 161 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RENAE MICHELLE SYME AS PERSONAL REPRESENTATIVE OF GRAEME JOHN WHITE - v- GRAEME JOHN WHITE, BRIAN PETER WHITE AND GAVIN MATHEW WHITE AS PARTNERS IN THE PARTNERSHIP TRADING AS THE PE WHITE AND SONS PARTNERSHIP [2026] WASC 161 CORAM : COBBY J HEARD : 10 APRIL 2026 DELIVERED : 1 MAY 2026 FILE NO/S : CIV 2364 of 2025 BETWEEN : RENAE MICHELLE SYME AS PERSONAL REPRESENTATIVE OF GRAEME JOHN WHITE First Plaintiff RANAE MICHELLE SYME THE GUARDIAN OF BRIAN PETER WHITE Second Plaintiff AND GRAEME JOHN WHITE, BRIAN PETER WHITE AND GAVIN MATHEW WHITE AS PARTNERS IN THE PARTNERSHIP TRADING AS THE PE WHITE AND SONS PARTNERSHIP First Defendant GAVIN MATHEW WHITE Second Defendant -- 1 of 25 -- [2026] WASC 161 Page 2 Catchwords: Partnership dispute - Whether proceedings properly instituted - Whether partner a person under a disability - Two of three partners persons under a disability - Whether leave should be granted to regularise institution of proceedings - Whether proposed next friend has interest adverse to either plaintiff - Whether arguable dissolution of partnership in best interests of either claimant Legislation: Guardianship and Administration Act 1990 (WA) Partnership Act 1895 (WA) Rules of the Supreme Court 1971 (WA) Result: Defendant's application for stay of proceedings refused in part Leave granted to substitute person under a disability by his next friend as first plaintiff Second plaintiff's claim stayed Order that matter proceed as if commenced by writ Category: B Representation: Counsel: First Plaintiff : Mr J M Healy Second Plaintiff : Mr J M Healy First Defendant : No appearance Second Defendant : Mr K de Kerloy SC & Mr R Dewar Solicitors: First Plaintiff : Bailiwick Legal Second Plaintiff : Bailiwick Legal First Defendant : HHG Legal Group (until 27 March 2026) Second Defendant : HHG Legal Group -- 2 of 25 -- [2026] WASC 161 Page 3 Case(s) referred to in decision(s): Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 Const v Harris (1824) Tur & Rus 496, 525; 37 ER 1191 Dalle-Molle v Manos (2004) 88 SASR 193 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65 Fry v Fry (1889) 15 PD 25 Gibbons v Wright (1954) 91 CLR 423 Jones v Lloyd (1874) LR 18 Eq 265 Kronenberg v Macaulay [2025] NSWCA 195 Re Taylor ; Taylor v Taylor [1881] WN 81; 25 SJ 525 Richmond v Branson [1914] 1 Ch 968 Rowell v Calder [2007] WASC 23 Rowlands v Evans (1861) 30 Beav 302, 310 - 311; 54 ER 905 Russian Commercial & Industrial Bank v Comptoir d'Escompte de Mulhouse [1925] AC 112 Sayer v Bennet (1784) 1 Cox 107, 110; 29 ER 1084 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 W v S [2025] WASCA 21 Woodings v Stevenson (2001) 24 WAR 221 Yonge v Toynbee [1910] 1 KB 215 -- 3 of 25 -- [2026] WASC 161 COBBY J Page 4 COBBY J: 1 On 28 November 2025 Renae Michelle Syme instituted these proceedings by originating summons. Ms Syme was named as the first and second plaintiff, purportedly as the personal representative of her father and as guardian of her uncle respectively. 2 I refer to Ms Syme's father as the first plaintiff and her uncle as the second plaintiff in these reasons, acknowledging that is not an accurate description of how they were identified in the originating summons. Regrettably, the summons did not identify Ms Syme as the next friend of either plaintiff. 3 The first defendant is a partnership between the plaintiffs and the second defendant. The second defendant is the first plaintiff's son and Ms Syme's brother. 4 The plaintiffs carried on a farming business in partnership for many years upon land owned by the two men as tenants in common. Their land is not a partnership asset. 5 In about July 2019, the plaintiffs admitted the second defendant, who had worked in the farming business for some time, to the partnership. It is common ground that upon the second defendant's admission to the partnership each of the plaintiffs and the second defendant held a one-third share in the partnership. 6 There is no written partnership agreement. There is no evidence of any lease or licence having been granted to the partnership in respect of the plaintiffs' land. 7 By the originating summons Ms Syme sought, amongst other relief: (a) leave to commence and conduct the proceedings on behalf of the plaintiffs; (b) that declarations be made that the second defendant has breached duties he owes pursuant to the Partnership Act 1895 (WA) alternatively in equity to act in the best interests of the partnership; (c) an order that the partnership be dissolved; -- 4 of 25 -- [2026] WASC 161 COBBY J Page 5 (d) an order that receivers and managers be appointed to the partnership on an interlocutory basis; and (e) interlocutory injunctive relief restraining the second defendant from taking any action in relation to the partnership pending a further order of the court. 8 By a minute of proposed orders filed 26 March 2026 Ms Syme sought, relevantly, orders that she be appointed the next friend for the first and second plaintiffs in their capacity as such. 9 The second defendant's position since the commencement of the proceedings has been that the proceedings should be stayed pending a determination by the State Administrative Tribunal as to the standing of Ms Syme to bring them. 10 The second defendant has also raised a number of other objections to the institution and continuation of the proceedings, of which the most significant is an allegation that Ms Syme had an improper purpose in commencing the proceedings. 11 For the reasons which follow, I have determined: (a) to declare that the first plaintiff was, by reason of mental illness, defect or infirmity, incapable of managing his affairs in relation to these proceedings as at 27 November 2025; (b) to allow the substitution of the first plaintiff by his next friend Ms Syme for Ms Syme as the first plaintiff in the proceedings, subject to the first plaintiff's solicitors complying with O 70 r 3(8)(b)(i) and (ii), Rules of Supreme Court 1971 (WA); (c) to adjourn the application to substitute the second plaintiff by his next friend Ms Syme as the second plaintiff in the proceedings; (d) to stay the proceedings insofar as they concern the second plaintiff's claims until the Tribunal determines whether to vary the appointment of Ms Syme and the second defendant as the joint plenary administrators of the second plaintiff; (e) to otherwise dismiss the second defendant's application for the stay of the proceedings; and -- 5 of 25 -- [2026] WASC 161 COBBY J Page 6 (f) to order that the first plaintiff's claim proceed as if commenced by writ - that is, upon pleadings. 12 Although the instrument is not in evidence, it is common ground that Ms Syme and the second defendant are the joint donees of an enduring power of attorney made by the first plaintiff. 13 Dr Kate Saunders, a general physician and geriatrician, saw the first plaintiff on 12 June 2025. A letter from Dr Saunders to the Attending Practitioner at the Wongan Hills Medical Centre dated that day records Dr Saunders' consultation with the first plaintiff and her opinion regarding his capacity. 14 Dr Saunders recorded in her letter that the first plaintiff recalled during that consultation that he has a bank account, and that he, the second plaintiff and the second defendant owned a farm. The first plaintiff did not know how much was in his account, and did not manage to explain to Dr Saunders how the ownership of the land and the farm business differed. The first plaintiff was unable to remember each man's share of the partnership. 15 Dr Saunders also recorded that the first plaintiff mentioned that the second defendant was supposed to be paying him and the second plaintiff $1 million each, but that he did not know what documentation had been prepared or where they were in that process. The first plaintiff told Dr Saunders he had someone acting on his behalf, but could not tell her who that was, and that he felt that the documents relating to the transaction had been drawn up before 'things fell apart'. 16 In Dr Saunders' opinion, as at 12 June 2025 the first plaintiff had moderate mixed vascular/Alzheimer's dementia, and demonstrated severely impacted delayed recall. In her opinion, as at that date the first plaintiff did not have the capacity to make financial decisions for himself as he was unable to remember the current state of his finances or the arrangements that he has with regard to the farm and the farm business. 17 A copy of that letter was provided to the second defendant. It appears that the second defendant accepts that the first plaintiff is incapable of managing his affairs, because the second defendant has not given evidence as to the first plaintiff's capacity to deal with his affairs and stated in his affidavit sworn 19 December 2025 that it followed, from his receipt of the letter from Dr Saunders, that he and Ms Syme are 'currently joint plenary administrators of both' plaintiffs. -- 6 of 25 -- [2026] WASC 161 COBBY J Page 7 18 Dr Saunders remained of the same opinion as at 30 March 2026. 19 I note in this regard that the second defendant filed an affidavit of Jonathan Ian Crabtree sworn 16 February 2026 in the proceedings. Mr Crabtree deposed that he is a solicitor, having been admitted as a lawyer in the Supreme Court of Western Australia in March 2012 and a director of the law firm Crabtree Legal. Mr Crabtree did not otherwise disclose his experience as a solicitor. In particular, Mr Crabtree did not depose to his experience in interviewing witnesses, nor his experience in dealing with individuals suffering from mental difficulties. 20 According to a letter of instruction provided by the second defendant's solicitors, HHG Legal Group, to Mr Crabtree dated 11 February 2026, the second defendant engaged Mr Crabtree 'as an expert witness to consult with [the first plaintiff] in relation to his wishes, in whatever manner and however expressed by [the first plaintiff] on the various matters detailed [in the letter] for the ultimate purpose of providing an affidavit and/or witness outline regarding [the first plaintiff's] responses'. 21 Although the letter of instruction referred to Mr Crabtree being engaged as an expert witness, it sought no more than that Mr Crabtree seek to ascertain the first plaintiff's 'wishes' in relation to a number of identified matters. It appears that Mr Crabtree spoke to the first plaintiff on 12 February 2026. There is no suggestion that Mr Crabtree had met the first plaintiff before that date. 22 In any event, the solicitors' letter did not seek, nor did Mr Crabtree depose to having, an opinion as to whether the first plaintiff is capable of managing his affairs in general, or these proceedings in particular. Mr Crabtree's affidavit does not evidence that the first plaintiff is capable of doing so. 23 There is no universal test for determining whether a person is capable of managing his or her affairs.1 Where a person is a party to litigation, they will be a person under disability if they cannot understand the nature of the litigation, its purpose and its possible outcomes, including the risks as to costs.2 24 Having regard to Dr Saunders' letter dated 12 June 2025, I find that the first plaintiff was a person under disability, as that term is 1 Gibbons v Wright (1954) 91 CLR 423, 437-438. 2 W v S [2025] WASCA 21 [43] - [44]; Dalle-Molle v Manos (2004) 88 SASR 193, [26] - [27]. -- 7 of 25 -- [2026] WASC 161 COBBY J Page 8 defined in O 70 r 1, immediately prior to the issue of the originating summons. I will accordingly make a declaration to that effect. 25 In doing so, I have not overlooked that Dr Saunders' opinion was limited to whether the first plaintiff had the capacity to manage his financial affairs as at that date. I have also had regard to the 'record of conversation' attached to Mr Crabtree's affidavit. Although that document suffers from not being a verbatim record of Mr Crabtree's conversation with the first plaintiff, it evidences the first plaintiff's inability to recall numerous matters, and certain difficulties in reasoning. 26 The evidence of the first plaintiff's difficulties with his memory outlined in Dr Saunders' letter is such that I consider he is unable to retain the information required to make the decisions necessary in the conduct of these proceedings, including retaining information for the period necessary to be able to use it in the course of his decision making in respect of these proceedings. 27 Turning to the second plaintiff, Ms Syme and the second defendant were jointly appointed plenary administrators of the second plaintiff's estate by the Tribunal on 14 October 2024 and Ms Syme appointed limited guardian of the second plaintiff by the Tribunal on the same date. 28 The second plaintiff is therefore a represented person, as that term is defined by O 70 r 1 of the Rules of the Supreme Court 1971 (WA). 29 As at the commencement of these proceedings the position was therefore that the first plaintiff was unable to manage his affairs; Ms Syme and the second defendant had joint authority to deal with the first plaintiff's one-third share in the partnership by reason of the enduring power of attorney he had granted them; Ms Syme and the second defendant had joint authority to deal with the second plaintiff's one-third share in the partnership pursuant to their joint appointment as the second plaintiff's plenary administrator; and the second defendant controlled his one-third share. 30 In addition, in the absence of any agreement between the partners to the contrary, as from 14 October 2024 Ms Syme was entitled to take part, together with the second defendant, in the management of the partnership business. That was because she and the second defendant jointly controlled the second plaintiff's share in the partnership from that date: see s 34(5), Partnership Act 1895 (WA). -- 8 of 25 -- [2026] WASC 161 COBBY J Page 9 31 However, assuming the power of attorney granted by the first plaintiff conferred plenary authority to act on his behalf to Ms Syme and the second defendant jointly, neither that instrument nor their appointment as joint administrators in respect of the second plaintiff's estate authorised Ms Syme to act independently of the second defendant in instituting these proceedings. 32 It is clear that in instituting these proceedings, Ms Syme was purporting to act as the authorised representative of each plaintiff, and on their behalf. In those circumstances, the fact that Ms Syme did not institute the proceedings in the plaintiffs' names as their next friend renders the proceedings irregular, but does not make them a nullity: Woodings v Stevenson (2001) 24 WAR 221 [20]; Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 [53], [62]; W v S [2025] WASCA 21 [51] - [53]. 33 Order 70 provides, so far as is presently relevant: 1. Terms used In this Order unless the contrary intention appears — GAA Act means the Guardianship and Administration Act 1990; person under disability means — (a) a person who is an infant; or (b) a represented person; or (c) a person not being a person referred to in paragraph (a) or (b), who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates; represented person means a person in respect of whom a guardian or administrator has been appointed under the GAA Act with authority to do either or both of the following — (a) as the next friend of the represented person, to commence, conduct or settle on behalf of the represented person specified proceedings, some proceedings or all proceedings; (b) as the guardian ad litem of the represented person, to defend or settle specified proceedings, some proceedings, or all proceedings, that are taken against the represented person. -- 9 of 25 -- [2026] WASC 161 COBBY J Page 10 2. Persons under disability suing or defending (1) Except as provided in subrule (4) a person under disability — (a) cannot bring, or make a claim in, any proceedings except by the person's next friend; and (b) cannot defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on the person, except by the person's guardian ad litem. (2) Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings must or may, if the party is a person under disability, be done by the person's next friend or guardian ad litem. (3) A next friend or guardian ad litem of a person under disability must act by a solicitor. … (5) If a person under disability is a represented person, the next friend or guardian ad litem of the represented person in any proceedings must be — (a) a guardian or administrator of the represented person authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem, as the case may be, in those proceedings; or (b) some other person appointed by the Court to be the next friend or guardian ad litem, as the case may be, in those proceedings. (6) An appointment by the Court under subrule (5)(b) may be — (a) of its own motion; or (b) on an application made under rule 5. (7) For the purposes of subrule (6)(b) the Court may vary the requirements of rule 5 as it considers appropriate in the circumstances. 3. Appointment of next friend or guardian ad litem (1) This rule does not apply in relation to a probate action. -- 10 of 25 -- [2026] WASC 161 COBBY J Page 11 (2) Save as provided by subrules (5) and (6) or by rule 5, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary for the purpose of a proceeding to which this rule applies. (3) If a person under disability is a represented person, a guardian or administrator authorised under the GAA Act Part 5 or 6 to act as next friend or guardian ad litem, as the case may be, of the represented person in the proceedings is the next friend or guardian ad litem, as the case may be. (4) Subrule (3) does not apply, in a case to which subrule (5) or (6) or rule 6 applies, if some other person is appointed by the Court to be the next friend or guardian ad litem, as the case may be, of the represented person in those proceedings. (5) Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person is entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing another person such friend or guardian in substitution for the person previously acting in that capacity. (6) Where, after the commencement of any proceedings, a party to the proceedings becomes a person under a disability, an application must be made to the Court for the appointment of a next friend or guardian ad litem, as the case may be, of that party. (7) Except where the next friend or guardian ad litem of a person under disability has been appointed by the Court, is a guardian or administrator referred to in subrule (3), or is the Public Trustee, the documents specified in subrule (8) must be filed before — (a) the name of any person can be used in a cause or matter as next friend of the person under disability; and (b) an appearance can be entered in a cause or matter for the person under disability; and (c) the person under disability is entitled to appear by the person's guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on the person. (8) The documents referred to in subrule (7) are as follows — (a) a written consent to be next friend or guardian ad litem, as the case may be, of the person under disability, -- 11 of 25 -- [2026] WASC 161 COBBY J Page 12 signed by the person proposing to act as such friend or guardian; and (b) an affidavit by the solicitor for the person under disability deposing — (i) that the solicitor knows or believes, as the case may be, that the person to whom the affidavit relates is an infant or a represented person, stating (in the case of a represented person) the grounds of that knowledge or belief; and (ii) that the person named in the affidavit as next friend or guardian ad litem, as the case may be, has no interest in the cause or matter in question adverse to that of the person under disability; and (iii) that in the case of an infant (who is not a represented person) who has attained the age of 14 years, the infant consents to the person named in the affidavit acting as next friend or guardian ad litem, as the case may be. 34 It is arguable that Ms Syme would not have required leave of the court to commence the proceedings had she done so as the first plaintiff's next friend. Historically, the English practice was that it was not necessary for a next friend to obtain an order authorising the institution of proceedings on behalf of the person under disability. 35 The established English practice, if a defendant wished to challenge the authority of the next friend to sue, was for the defendant to apply for the stay or dismissal of the action: Richmond v Branson [1914] 1 Ch 968, 973 - 974; Russian Commercial & Industrial Bank v Comptoir d'Escompte de Mulhouse [1925] AC 112, 130, at which point it was open to the court to grant leave to amend by adding a next friend: W v S [52]. Further, it was open to a party said to be incapable to challenge the appointment of a next friend on their behalf: Fry v Fry (1889) 15 PD 25. 36 It is arguable that the English practice does not apply in Western Australia. Order 70 r 1 relevantly defines a person under disability to be a person 'declared by the Court to be incapable of managing their affairs in respect of any proceedings to which the declaration relates' (emphasis added). The text of O 70 r 1 suggests that, at least in this State, the court must declare the person to be under a disability before proceedings are commenced. -- 12 of 25 -- [2026] WASC 161 COBBY J Page 13 37 The reference to a person being declared to be a person incapable of managing their affairs appears to be unique to Western Australia. 38 I have been unable to identify a decision where that procedure has been followed. Although Martin CJ's comments in Rowell v Calder [2007] WASC 23 [22] - [23] provide some limited support for that construction of the rule, the issue did not require determination on that occasion. 39 A requirement that a person intending to commence proceedings as the next friend of a person under a disability first commence separate proceedings for the sole purpose of obtaining the declaration identified in O 70 r 1 would seem to add additional complexity and cost for little practical benefit, once it is accepted that the defect arising from proceedings being issued in the name of an incapable plaintiff can be remedied upon the defendant objecting to the commencement of the proceedings or by an application to amend the originating process. 40 One possible construction of O 70 r 3(7) and r 3(8) is that proceedings may be instituted in this State by the next friend of the person under a disability without first obtaining a declaration that the person is incapable of managing their affairs in respect of the proceedings, provided that the documents identified in O 70 r 3(8) are filed either prior to or with the originating process. 41 Ultimately, however, it is unnecessary to decide the question, as the second defendant has sought an order that the proceedings be stayed and the plaintiffs have in turn applied for an order that Ms Syme be appointed next friend for each plaintiff. 42 The second defendant has criticised Ms Syme for failing to seek directions from the Tribunal pursuant to s 109(2)(b) of the Guardianship and Administration Act 1990 (WA) prior to commencing the proceedings. That section provides: The donee of an enduring power of attorney may apply to the State Administrative Tribunal — (a) … (b) for directions as to matters connected with the exercise of the power or the construction of its terms. -- 13 of 25 -- [2026] WASC 161 COBBY J Page 14 43 That criticism is misplaced. First, s 109(2)(b) is permissive, rather than mandatory. The section permits the donee of an enduring power of attorney to seek directions, but it does not require that be done. 44 Secondly, the grant of any power to institute proceedings on behalf of the first plaintiff, assuming the power of attorney had that effect, was made to Ms Syme and the second defendant jointly. As Ms Syme could not utilise any grant of power effected by that instrument without the second defendant's consent, which was clearly not forthcoming, there was no point to Ms Syme seeking directions regarding the exercise of any power to institute proceedings conferred by that instrument. 45 The court has power to appoint a next friend in an appropriate case: Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65 [21] - [27]. 46 It is therefore open to grant leave to amend the originating process to substitute the first plaintiff by his next friend Ms Syme as first plaintiff in the proceedings, and I will do so for the reasons which follow. 47 However, I consider that a different approach should be taken in respect of the second plaintiff's claim. The power to commence proceedings was conferred by the Tribunal upon Ms Syme and the second defendant jointly. 48 Section 75(a) of the Guardianship Act provides, in effect, that a joint administrator must not perform any function without the concurrence of the other administrator. 49 Section 75(b) of the Guardianship Act provides that if joint administrators cannot agree on the performance of any function, they may apply to the Tribunal for directions. An administrator is required to comply with a direction given to him or her by the Tribunal. 50 Although I consider that this court has the power to appoint Ms Syme as the second plaintiff's next friend, it is undesirable that I do so in circumstances where that would be inconsistent with the previous order of the Tribunal and any urgency which the commencement of these proceedings may have possessed when the originating summons was filed has been addressed by an undertaking provided by the second defendant to the court on 10 April 2026. -- 14 of 25 -- [2026] WASC 161 COBBY J Page 15 51 In addition, as it is reasonably arguable that the second defendant is in a position of conflict of interest and duty regarding his refusal to agree to Ms Syme commencing proceedings against him, it is desirable that their joint appointment be considered again by the Tribunal. 52 As Ms Syme has now instructed her solicitors to make applications to the Tribunal in respect of both plaintiffs, I consider that the determination of the application to substitute the second plaintiff by his next friend Ms Syme as second plaintiff in the proceedings should await the Tribunal having the opportunity to consider the position, with the parties having liberty to apply. 53 The second defendant has made a number of other objections to Ms Syme's appointment as next friend of each plaintiff, although they are somewhat related. 54 First, the second defendant submits, in substance, that Ms Syme has not made an application for the appointment of a next friend. It is said, in effect, that Ms Syme is required to comply with O 70 r 3(8)(b)(i) and (ii) before the court can allow an amendment naming her as the next friend of either plaintiff, Ms Syme having filed a signed consent to acting as next friend as required by O 70 r 3(8)(a) after the commencement of the proceedings. 55 That would require the solicitor acting for the plaintiffs to file an affidavit deposing to the matters specified in O 70 r 3(8)(b)(i) and (ii). Subject to what follows, that does not present any obstacle to the appointment of Ms Syme as next friend, because the making of any order can be made conditional upon that being done. I will adopt that course to forestall any further argument about the point. 56 Next, the second defendant asserts that the plaintiffs are estopped from seeking the dissolution of the partnership. The second defendant's evidence in support of that claim is that: Throughout the course of my 27 years of working full time in the Business, both [the plaintiffs] have promised me that I would receive the Farm and the Business on their death and become the owner of the Farm. I have worked in the Business on the basis of that promise. 57 That is said to give rise to a 'very strong claim' that the plaintiffs would be estopped from resiling from the representations alleged to have been made to the second defendant. -- 15 of 25 -- [2026] WASC 161 COBBY J Page 16 58 Leaving to one side the conclusionary nature of the second defendant's evidence, his evidence does not address important considerations in assessing any claim of proprietary estoppel. The second defendant's reliance upon the alleged promises is a fact to be found, rather than presumed: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [58] - [61]; Kronenberg v Macaulay [2025] NSWCA 195 at [199]. 59 In addition, it is necessary to establish that the second defendant would suffer detriment if the alleged promises were not kept, in the sense that he would have been better off overall had he not relied upon them: Kronenberg [207]. 60 Further, the assessment of whether the second defendant would suffer detriment is to be approached 'as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances': Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 [20]; Kronenberg [209]. 61 It is not possible to assess those further factors on the current state of the evidence. I also note that the second plaintiff's will is inconsistent with the promise claimed to have been made by him, and that there is evidence which suggests that the second defendant was engaged in negotiations to buy at least the first plaintiff's interest in the land as recently as November 2024. 62 The evidence before the court is therefore insufficient to form any view as to the merits of the second defendant's foreshadowed estoppel claim. 63 A further consideration is that the promise said to have been made regarding the partnership assets is limited to a claim that the second defendant would receive those assets upon the death of both plaintiffs. That claim therefore does not impact upon the management of the partnership during the lives of the plaintiffs. 64 In the circumstances, I am not satisfied that the foreshadowed estoppel claim or claims, as formulated and having regard to the evidence presently before the court, constitutes a sufficient reason to refuse to allow the first plaintiff's claim to proceed. 65 The third objection is somewhat related to the second. It is said that the Tribunal would have regard to the plaintiffs' 'wishes' in -- 16 of 25 -- [2026] WASC 161 COBBY J Page 17 determining what, if any directions, to give Ms Syme regarding the second plaintiff's position.3 66 As I have determined that I will not determine the application to substitute the second plaintiff as a plaintiff in the proceedings, the point does not presently require further consideration. 67 Finally, the second defendant alleges that Ms Syme has a conflict of interest in acting as next friend for either plaintiff. 68 That is said to arise because Ms Syme is a beneficiary under the wills of both plaintiffs. 69 Although the second defendant referred on several occasions to the plaintiffs having mirror wills, that is not the case. The wills are in different terms and differ in effect. 70 The first plaintiff's will made 13 April 2021 essentially provides that: (a) the second plaintiff is to receive the first plaintiff's estate in the event that the first plaintiff predeceases the second plaintiff; (b) otherwise, the second defendant is to receive the first plaintiff's interest in any farming land he holds, together with, subject to payment of his debts and taxes, 'all of [the first plaintiff's] equity' in the partnership; (c) certain specific bequests be made to Ms Syme; and (d) Ms Syme is also to receive the residue of the first plaintiff's estate. 71 The effect of the second plaintiff's will made 8 July 2020 is that: (a) the first plaintiff is to receive the whole of the second plaintiff's interest in land used or capable of being used for farming; (b) the second defendant is to receive the second plaintiff's interest in that land only in the event that the first plaintiff predeceases the second plaintiff or does not survive him for 28 days; 3 The same argument was made in relation to the first plaintiff, but is of little weight since Ms Syme is not required to approach the Tribunal for directions in relation to the power of attorney granted by him. -- 17 of 25 -- [2026] WASC 161 COBBY J Page 18 (c) Ms Syme is to receive the balance of the estate, which as matters currently stand would include the second plaintiff's interest in the partnership. 72 Based on his affidavit sworn 19 December 2025, the second defendant misunderstood the effect of the second plaintiff's will in the event that the first plaintiff dies first, since the second defendant deposed that he is to receive the second plaintiff's interest in the partnership under that will. 73 In that context, the second defendant asserts that Ms Syme has a conflict of interest in acting as the next friend for either plaintiff, because it is to her eventual advantage if the plaintiffs' interests in the partnership assets fall into the residue of each plaintiff's estate, or their land is sold prior to their deaths. 74 The appointment of a next friend is principally to ensure the proper protection of the interests of the person under a disability. It will therefore ordinarily be inappropriate to appoint a person as next friend if he or she has an interest adverse to the interests of the person under a disability: Re Taylor ; Taylor v Taylor [1881] WN 81; 25 SJ 525; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 113 - 114. 75 However, senior counsel for the second defendant went further, and submitted that Ms Syme has an improper purpose in seeking to prosecute the plaintiffs' claims, being to ensure that the amount she receives under the wills is maximised. 76 Given the seriousness of that allegation, it is necessary to examine the claims sought to be pursued, and the evidence in support of them. 77 First, the plaintiffs seek an order that the partnership be dissolved. Section 46(a) of the Partnership Act 1895 (WA) provides that the court has the discretion to make an order for the dissolution of a partnership when a partner is shown to be of unsound mind, upon the application of the next friend of that partner or any other partner. 78 The making of an order for dissolution pursuant to s 46(a) is at the discretion of the court: Yonge v Toynbee [1910] 1 KB 215. There is old authority for the proposition that the court will not make an order for the dissolution of a partnership on this ground unless the order is in the best interests of the person under a disability: Jones v Lloyd (1874) LR 18 Eq 265, 272. -- 18 of 25 -- [2026] WASC 161 COBBY J Page 19 79 The courts have traditionally accepted that the continuing liability of a partner for the debts and obligations of the partnership, and the obligation of the other partner to otherwise carry on in business with the incapable person, justifies the dissolution of a partnership where a partner becomes a person under a disability: Sayer v Bennet (1784) 1 Cox 107, 110; 29 ER 1084; Rowlands v Evans (1861) 30 Beav 302, 310 - 311; 54 ER 905; Jones v Lloyd (1874) LR 18 Eq 265, 273 - 274. 80 Here, two of the three partners are presently under a disability. There is nothing to suggest that will change. As the only argument presently advanced against the dissolution of the partnership is the second defendant's claim that the plaintiffs are estopped from (in effect) dealing with their interests in the partnership during their lifetimes, which I am not satisfied is supported by sufficient evidence at his point, it is at least reasonably arguable that the court will consider dissolving the partnership, assuming that is shown to be in the best interests of one or both plaintiffs. 81 Further, if Ms Syme is appointed as next friend for the first plaintiff, any settlement of the proceedings will require the approval of the court: O 70 r 10(1). 82 It follows that Ms Syme could only give effect to the improper purpose asserted against her if the court first found that it was in the best interests of either plaintiff for the partnership to be dissolved or the proceedings settled. As such, the personal interest that senior counsel for the second defendant alleges Ms Syme to be pursuing is aligned, rather than adverse to, the interests of the plaintiffs. 83 As to whether the pursuit of the plaintiffs' claims is in their best interests: (a) each plaintiff remains liable for the debts and obligations of the partnership while the partnership continues, notwithstanding their incapacity: s 16, Partnership Act; (b) the evidence is that the partnership does not pay rent or no more than nominal rent to the plaintiffs for the use of their land in the partnership business. There is uncontested evidence that the market rent for the land exceeds $500,000 per annum; (c) the first plaintiff has received drawings of $62,400 annually since some point in 2024, that amount representing 'a large change from his prior situation' according to the second -- 19 of 25 -- [2026] WASC 161 COBBY J Page 20 defendant. That change is said by him to have arisen due to Ms Syme's request that the partnership credit card not be used to pay the first plaintiffs' living expenses; (d) the second plaintiff's living expenses are $23,660 annually, which are paid by the partnership. The second defendant's evidence is that the second plaintiff does not receive drawings at all, although the 2024/2025 partnership financial statements show the second plaintiff to have received a total of $511,980 in drawings in the two financial years ending 30 June 2024 and 30 June 2025. The discrepancy was not explained; (e) the first plaintiff is indebted to the partnership in the amount of $42,422, while the partnership is indebted to the second plaintiff in an amount exceeding $1 million as at 30 June 2025; (f) other than the drawings received by the first plaintiff, the plaintiffs' share of the partnership's profits are not distributed to them. Instead, those shares are retained by the partnership, leaving the plaintiffs exposed to the risk that debts due to them may ultimately prove irrecoverable; (g) there is no indication in the partnership accounts that the partnership pays interest on the advances made by the partners to the partnership by the retention of the distributed profits. The partnership's 2025 financial statements show $285,047 in equipment finance liabilities (reduced from $507,740 as at 30 June 2024), with no other debt to external lenders. 84 On that evidence, it is open to argue that the plaintiffs are acting as unsecured lenders to the partnership and may not be receiving a commercial return on their assets, while they remain liable for the partnership's debts and obligations. 85 Further, as matters stand, Ms Syme has controlled, jointly with the second defendant, two thirds of the shares in the partnership as from 12 June 2025. Ms Syme contends, amongst other things, that the second defendant: (a) has received drawings substantially over the amounts specified in the partnership's budget in each of the years 2021 to 2024; (b) received drawings for the 2025 year without reference to Ms Syme; -- 20 of 25 -- [2026] WASC 161 COBBY J Page 21 (c) apparently authorised an advance of $16,020 from partnership funds to himself, separate from drawings, in the 2025 financial year, again without reference to Ms Syme; (d) approved the 2025 tax return for the partnership without reference to Ms Syme; (e) approved the final design of and paid for the construction of a replacement shed without reference to Ms Syme, at a cost in excess of $300,000; (f) attended a tax planning meeting for the partnership on 18 June 2025 without informing Ms Syme it was being held; (g) paid $100,000 for superannuation for his own benefit from partnership funds on 19 June 2025 without her knowledge; (h) entered into an agreement on 20 June 2025 for the partnership to pre-pay $1 million to Bach WA Holdings WA Pty Ltd for the supply of fertiliser without reference to Ms Syme, in circumstances where the budget agreed in March 2025 for the prepayment of fertiliser and chemical costs had been $500,000. It is a term of that pre-pay agreement, in effect, that any unused balance of the pre-payment, together with amounts credited by the supplier to the partnership calculated as a percentage of that balance during the term of agreement, are lost to the partnership on the expiration of the one year term of the agreement; (i) paid a number of the second defendant's personal and household expenses, including school fees for the second defendant's children, from the partnership bank account. The school fees at least are said to be in addition to the second defendant's entitlement to profits; (j) paid $100,000 on 6 March 2025 to CMC Market Shares. The second defendant's explanation of this transaction is that he purchased shares in his own name with those funds, but holds them upon trust for the plaintiffs and himself. It is not clear from his evidence whether he claims that the shares comprise an asset of the partnership, but the partnership's accountant is said to have been unaware of the shares, and the second defendant did not adduce any documentary evidence of the existence of the trust; -- 21 of 25 -- [2026] WASC 161 COBBY J Page 22 (k) paid $122,000 to his solicitors, HHG Legal, from the partnership bank account on 19 November 2025, in circumstances where Ms Syme's solicitors had forwarded a letter of demand to HHG Legal on 14 November 2025 together with drafts of the originating summons and Ms Syme's affidavit in support of it; (l) was indebted to the partnership in the amount of $557,425 as at 30 June 2024. The 2025 financial statements show the second defendant to have remained indebted to the partnership in the amount of $433,507 as at 30 June 2025. 86 I note that the second defendant appears to have misunderstood the consequences of his and Ms Syme's joint appointment as administrators of the second plaintiff's estate, because his evidence as of 19 December 2025 was that it is 'clear that … we [i.e. Ms Syme and himself] must confer in relation to any decision which is for the best interest of [the plaintiffs] in their personal capacity' (emphasis added), suggesting that he did not consider it necessary to consult her regarding the business of the partnership. 87 Although the second defendant referred to his having taken 'on a more managerial role' in 'the last couple of years' prior to his affidavit of 19 December 2025, there is no evidence of any agreement between the partners that the second defendant have sole management of the partnership business, still less that any agreement that may have been made about the management of that business was irrevocable. 88 The existence of any agreement that the second defendant have the sole management of the partnership business is inconsistent with the second defendant's evidence that the first plaintiff agreed that the second defendant receive additional benefits from the partnership 'at the 2022 budget meeting', and that he agreed to the purchase of a motor vehicle by the partnership for $144,000 (not including GST). That vehicle was acquired in January 2024. 89 The second defendant's evidence is that he has entered into contracts, incurred expenditure on behalf to the partnership and signed the 2024 partnership tax return because he 'believed it was within his right as a partner'. He claims that Ms Syme has not been excluded from decision making regarding current and future business operations, on the basis that Ms Syme was present at one budget meeting, and it was -- 22 of 25 -- [2026] WASC 161 COBBY J Page 23 necessary for a 'quick decision' to be made on the agreement for the construction of the replacement shed. 90 The second defendant did not explain why it was necessary for him to approve the agreement for the replacement shed immediately without reference to Ms Syme, other than to say that he did so in order to ensure that construction of the shed began as quickly as possible. 91 Nor did the second defendant address in his evidence the failure to invite Ms Syme to attend the budget meeting held on 18 June 2025. 92 His explanation for the $100,000 payment for superannuation was that the advice he received was that it would substantially reduce the tax payable by the partnership and compensate the second defendant 'for the years in which [he] hadn't been paid superannuation since becoming a partner'. 93 It is not clear why the second defendant considers that he was and is entitled to be paid superannuation as a partner, as opposed to when he worked as an employee of the partnership. In any event, I note that the 2025 financial statements record the $100,000 superannuation payment as having been paid from his share of the profits for the 2025 financial year, as would ordinarily be expected. 94 As for the $122,000 payment to the solicitors HHG Legal, the second defendant's evidence is that he 'believed he was entitled to [that] amount from his share of the profit for 2024/2025 financial year which remained in the Business Bank Accounts', his 'share [being] well in excess of the amount transferred to HHG Legal Group'. 95 As already noted, the second defendant owed the partnership a substantial amount as at 30 June 2025. The balance of the second defendant's entitlement to his share of the profits for the 2025 financial year, after accounting for his drawings, the advance made to him, the payment for superannuation and income tax, was only $123,918. It is reasonably arguable, given the extent of the second defendant's debt to the partnership, that the effect of the payment was to make an unsecured loan of $122,000 to the second defendant at a time that the second defendant knew that his dealings with the partnership's assets were being challenged. 96 There is accordingly evidence that the second defendant has made payments totalling not less than $1.5 million from the partnership assets -- 23 of 25 -- [2026] WASC 161 COBBY J Page 24 with no or allegedly inadequate consultation with Ms Syme, not including the $100,000 payment to CMC Market Shares. 97 Regardless of how the partnership may have been conducted when the plaintiffs had the ability to protect their own interests, in the absence of evidence of any binding agreement as to the management of the partnership, matters such as the amounts in which and when drawings might be taken by the partners, the payment of any distribution of profits, the incurring of liabilities and the like are matters of the internal management of the partnership, and accordingly to be agreed by the partners, or at least the subject of discussion between them. 98 A refusal to permit a partner to participate in management may justify the dissolution of the partnership on the just and equitable ground: Const v Harris (1824) Tur & Rus 496, 525; 37 ER 1191; Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, 378B - 380F. 99 On the current state of the evidence, I am not satisfied that Ms Syme is advancing interests in the proceedings adverse to those of the plaintiffs or for any improper purpose. In my judgment, the issues identified by Ms Syme regarding the question whether the partnership should be dissolved and the second defendant's management of the partnership are such that the proceedings should progress in this court, the Tribunal lacking jurisdiction to deal with the substantive claims made in the proceedings. 100 The second defendant's application to stay the proceedings should therefore be dismissed. 101 Having regard to the complexity of some of the issues raised regarding the second defendant's dealings with partnership assets and the extent of Ms Syme's participation in the management of the partnership, and the foreshadowed counterclaim, the proceedings should proceed as if commenced by writ, upon pleadings. 102 I will hear from counsel as to the precise form of the orders, and as to costs. -- 24 of 25 -- [2026] WASC 161 COBBY J Page 25 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RH Associate to the Hon Justice Cobby 1 MAY 2026 -- 25 of 25 --