MCH AGENCY SERVICES PTY LTD -v- TREVISAN [2026] WASC 317

[2026] WASC 317 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : MCH AGENCY SERVICES PTY LTD -v- TREVISAN [2026] WASC 317 CORAM : GETHING J HEARD : 30 JUNE 2026 DELIVERED : 5 AUGUST 2026 FILE NO/S : CIV 1781 of 2024 BETWEEN : MCH AGENCY SERVICES PTY LTD AS TRUSTEE OF THE IRIS CLAREMONT SECURITY TRUST First Plaintiff MCH AGENCY SERVICES PTY LTD AS TRUSTEE OF THE IRIS BOORAGOON SECURITY TRUST Second Plaintiff AND SIMON TREVISAN Defendant Catchwords: Practice and Procedure - Consent order signed by a defendant in person - Whether court can make orders in terms of the consent order when the consent of a litigant in person is not affirmed in person before a Judge - Circumstances in which the court can decline to extract a signed consent order Practice and Procedure - Circumstances in which the court can summarily enforce in an action an agreement compromising the action -- 1 of 100 -- [2026] WASC 317 Page 2 Practice and Procedure - Summary Judgment - Claim against guarantor - Whether arguable defence based on misleading conduct - Whether arguable defence based on statutory unconscionability - Whether arguable defence based on breach of duties as mortgagees in possession - Whether arguable defence based on inaccuracy Dobbs certificate Legislation: Australian Consumer Law s 18, s 20, s 21, s 237, s 243 Australian Securities and Investment Commission Act 2001 (Cth) s 12CA, s 12 CB, s 12DA, s 12GGM Rules of the Supreme Court 1971 (WA) O 42 r 7, r 8; O 43 r 16; O 14 Result: The court declines to make orders in terms of the consent orders filed 9 March 2026 Judgment for the plaintiff in terms of the Deed of Settlement made on or about 9 April 2025 Category: B Representation: Counsel: First Plaintiff : P Honey Second Plaintiff : P Honey Defendant : In Person Solicitors: First Plaintiff : Corrs Chambers Westgarth Second Plaintiff : Corrs Chambers Westgarth Defendant : In Person Case(s) referred to in decision(s): Addenbrooke Pty Ltd v Duncan (No 2) [2017] FCAFC 76 Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 -- 2 of 100 -- [2026] WASC 317 Page 3 Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Securities and Investments Commission v AGM Markets (No 3) (2020) 275 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 Bank of Queensland Limited v Fahy [2025] WASC 180 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 Boon v Burt [2020] WASC 64 (S) Booth v Zhou [No 2] [2024] WASCA 128 Bozic v Rand Mining Limited [2019] WASC 73 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Carver v Westpac [2002] NSWSC 431 Chappell v Goldspan Investments Pty Ltd [2021] WASCA 205 Chesterton International (WA) Pty Ltd v Jackson McDonald (a firm), WASC, Heenan J, Supreme Court Lib 950056, 21 February 1995 Chopsonion Pty Ltd (Controllers Apptd) v Watts Meat Machinery Pty Ltd (No 2) [2025] FCA 4 Civmec Construction & Engineering Pty Ltd v Mann (No 2) [2023] WASC 99 Collopy v Commonwealth Bank of Australia [2019] WASCA 97 Commonwealth Bank of Australia v Hardie [2004] WASC 186 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365 Connor v Veitch [2023] WASCA 186 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dewar v Ollier [2020] WASCA 25 Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 Ellis v East Metropolitan Health Service [2018] WADC 36 (S) Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 General Credits (Finance) Pty Limited v Tenton Lake Pty Ltd [1985] 2 Qd R 6 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Harvard Nominees v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 Hip Foong Hong v H Neotia and Co [1918] AC 888 Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC Kakavas v Crown Melbourne Ltd [2013] HCA 25; [2013] 250 CLR 39 Kounis v Westpac Banking Corporation [2023] WASCA 185 -- 3 of 100 -- [2026] WASC 317 Page 4 Lee v Lawfirst Pty Ltd [2023] WASCA 166 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v LT. Market St Pty Ltd [2021] WASC 4 Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v Lt. Market St Pty Ltd [2021] WASC 4 (S) Mighty River International Ltd v Mineral Resources Ltd (No 2) [2019] WASC 197 Miles v Bull [1969] 1 QB 258 Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148 Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555 Nikoloff v Perpetual Trustee Company Limited [No 2] [2022] WASCA 16 Nobarani v Mariconte [2018] HCA 36 Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 Perpetual Trustee Co Ltd v Nikoloff [2020] WASC 389 Pisano v South Metropolitan Health Service [2023] WASCA 80 Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54 Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 281 CLR 339 PSAL Ltd v Kellas-Sharpe & Ors [2012] QSC 31 RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297 Rhodes v De Castro [2022] WASC 214 Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd [1956] VLR 555 Rumball v Mortimore [2000] WASC 126 Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223 Shilkin v Taylor [2011] WASCA 255 Smart v Prisoner Review Board (WA) [2012] WASC 48 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Stevens v Wright [2021] WASC 36 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 Swiss Re International SE v David Simpson [2018] NSWSC 233 Taco Co of Australia Inc v Tacobell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 -- 4 of 100 -- [2026] WASC 317 Page 5 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Woodley v Woodley [2018] WASCA 149 Wyzenbeek v Australasian Marine Imports Pty Ltd (ACN 083 056 893) (in liq) (2019) 373 ALR 79 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 -- 5 of 100 -- [2026] WASC 317 Page 6 TABLE OF CONTENTS 1. Introduction................................................................................................................ 8 2. The Plaintiffs' evidence............................................................................................ 14 2.1 Overview ........................................................................................................ 14 2.2 MCH Claremont ............................................................................................. 14 2.3 Booragoon Facility ......................................................................................... 17 2.4 Plaintiffs' actions to enforce their securities ................................................... 20 2.5 Settlement Deed ............................................................................................. 23 2.6 Mr Donnelly's knowledge as at 9 April 2025 ................................................. 26 2.7 Sale of the Booragoon Land ........................................................................... 27 2.8 Deferred Payment ........................................................................................... 28 2.9 Amount of the Plaintiffs' claims ..................................................................... 28 3. Are the Plaintiffs entitled to judgment in terms of the March Consent Order? ....... 31 3.1 The significance of Mr Trevisan being a litigant in person ........................... 31 3.2 The circumstances in which the Court can decline to extract a consent order34 3.3 Mr Trevisan's arguments - Overview ............................................................. 42 3.4 Misleading conduct - principles ..................................................................... 43 3.5 Misleading conduct - the Plaintiffs' position .................................................. 46 3.6 Misleading conduct - Mr Trevisan's position ................................................. 49 3.7 Misleading conduct - determination ............................................................... 59 3.8 Unconscionable conduct - principles ............................................................. 61 3.9 Unconscionable conduct - Mr Trevisan's position ......................................... 63 3.10 Unconscionable conduct - the Plaintiffs' position .......................................... 65 3.11 Unconscionable conduct - determination ....................................................... 65 3.12 Setting aside the Settlement Deed - determination ........................................ 66 3.13 Summary enforcement of the Settlement Deed by the Plaintiffs - determination .................................................................................................. 66 4. Has MCH Booragoon established a prima face entitlement to judgment? .............. 67 5. Does Mr Trevisan have an arguable defence to the claim? ..................................... 69 5.1 Principles ........................................................................................................ 69 5.2 Overview of Mr Trevisan's position ............................................................... 70 5.3 Mr Trevisan's evidence - background ............................................................ 70 5.4 Is there an issue to be tried that the Plaintiffs engaged in misleading or deceptive conduct in relation to the Restatement Deed?................................ 72 5.5 Is there an issue to be tried that the Plaintiffs engaged in statutory unconscionable conduct in relation to the Restatement Deed? ...................... 78 -- 6 of 100 -- [2026] WASC 317 Page 7 5.6 Is there an issue to be tried that the Plaintiffs breached their duty as mortgagees in possession in relation to the sale of the Booragoon Land and the Claremont Land? ............................................................................... 85 5.7 Is there an issue to be tried that the Plaintiffs have not proven the accuracy of the Booragoon Certificate? ........................................................................ 90 6. Is there 'some other reason' not to award summary judgment in relation to the claim? ............................................................................................................. 97 7. What final orders are appropriate? .......................................................................... 98 -- 7 of 100 -- [2026] WASC 317 GETHING J Page 8 GETHING J: 1. Introduction 1 MCH Agency Services Pty Ltd (MCH Agency) carries on business as agent for financiers under various syndicated facility agreements. The first plaintiff is MCH Agency as trustee of the Iris Claremont Security Trust (MCH Claremont). The second plaintiff is MCH Agency as trustee for the Iris Booragoon Security Trust (MCH Booragoon). The defendant, Mr Trevisan, was, at all material times, a director of each of Iris Terraces Claremont Pty Ltd (Iris Terraces), Iris Residential Pty Ltd (Iris Residential) and Amara 2018 Pty Ltd (Amara). 2 In December 2021, Perpetual Corporate Trust Limited as custodian for the MCP Real Estate Debt Fund (Perpetual MCP) lent Iris Terraces a sum of just over $19 million (Claremont Facility). The loan was guaranteed by Mr Trevisan. By various agreements, MCH Claremont is the entity responsible for enforcing this loan. MCH Claremont says that Iris Terraces failed to pay interest due on 24 January 2024. It initiated the default processes in the loan agreements, ultimately resulting in a notice of default being issued to Mr Trevisan under the guarantee, which he did not comply with. 3 In April 2023, Perpetual Corporate Trust Limited as custodian for the Metrics Credit Partners Diversified Australian Senior Loan Fund (Perpetual Metrics) lent Iris Residential just over $11 million (Booragoon Facility). The loan was also guaranteed by Mr Trevisan. By various agreements, MCH Booragoon is the entity responsible for enforcing this loan. MCH Boorgaoon says that the default by Iris Terraces allowed it to initiate the default processes in relation to the loan to Iris Residential. MCH Booragoon initiated these processes, ultimately resulting in a notice of default being issued to Mr Trevisan under the guarantee, which he did not comply with. 4 On 28 June 2024, MCH Claremont and MCH Booragoon (collectively, the Plaintiffs) commenced an action against Mr Trevisan to enforce the two guarantees (Guarantees). Mr Trevisan entered an appearance on 12 July 2024. Since 23 January 2025 he has been a litigant in person. 5 The Plaintiffs filed a statement of claim with the writ. They then filed an amended statement of claim on 30 August 2024 (ASOC). -- 8 of 100 -- [2026] WASC 317 GETHING J Page 9 6 On 13 August 2024, the Plaintiffs filed an application for summary judgment pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 1. The Plaintiffs then filed an amended application on 14 August 2024 in which the basis on which interest is sought was amended (Summary Judgment Application). 7 After the Summary Judgment Application was filed, MCH Claremont sold the land which was the security for Claremont Facility. The net result was a modest surplus which was applied to reduce the Booragoon Facility. Accordingly, MCH Claremont no longer presses its claim against Mr Trevisan. The Summary Judgment Application is now limited to a claim by MCH Booragoon against Mr Trevisan for the amount outstanding on the Booragoon Facility, including interest to the date of judgment, and costs. 8 The Summary Judgment Application was initially listed to be heard on 7 April 2025. However, on 2 April 2025, I made orders by consent vacating this hearing and giving the parties liberty to apply to relist the Summary Judgment Application or list a directions hearing. On 10 April 2025, the parties filed a consent order proposing that the matter be adjourned to a hearing scheduled nine months after the date of the consent orders, with liberty to apply and costs reserved. On 11 April 2025, I made orders in those terms, listing a hearing for 25 February 2026. Due to a scheduling conflict, the hearing was later moved to 27 February 2026 at 2:15 pm. On 26 February 2026, the parties filed a consent order requesting that the directions hearing be adjourned to a time convenient to the Court after 13 March 2026. The same day, I made an order that the hearing be relisted to 19 March 2026. 9 On 9 March 2026, the Plaintiffs filed a consent order (March Consent Order). Given its significance to the issues now in dispute, I will quote its terms in full: 1. Judgment be entered for the First and Second Plaintiff against the Defendant for payment of the sum of $90,000. 2. The Defendant pay to the First and Second Plaintiff interest on the sum of $90,000 from 9 December 2025 until payment at the rate of 6% per annum above the cash rate target published by the Reserve Bank of Australia calculated on the actual number of days elapsed on the basis of a 365 day year, and accruing and compounding daily. -- 9 of 100 -- [2026] WASC 317 GETHING J Page 10 3. The Defendant do pay the Plaintiffs' costs of the action on a party and party basis. The March Consent order had been signed by Mr Trevisan as part of a Settlement Deed which the parties had entered into on or about 9 April 2025 (Settlement Deed). 10 On 10 March 2026, a registrar entered judgment in terms of the March Consent Order. However, on my review, it was apparent that RSC O 42 r 8 had not been complied with. That rule provides: 8. Entering judgment by consent where defendant has not appeared or is self-represented Where the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, or solicitor. 11 I informed the parties that they needed to attend before me pursuant to RSC O 42 r 8, which took place on 11 March 2026. At that hearing, Mr Trevisan raised some concerns and requested the Court to not make orders in terms of the March Consent Orders. On 11 March 2026, I made orders: (a) setting aside the judgment entered by the registrar; (b) listing Mr Trevisan's application for the Court to not make orders in terms of the March Consent Order for 30 June 2026 (Set Aside Application); (c) relisting the Summary Judgment Application for hearing on 30 June 2026; and (d) programming the filing of submissions and affidavits. 12 On 24 April 2026, Mr Trevisan filed an application for leave to file a defence out of time. At a hearing on 11 June 2026, I dismissed this application with no orders as to costs. This was because of RSC O 20 r 4(2), which has the effect that, where an application for summary judgment is made pursuant to RSC O 14 r 1, the defendant must file a defence within 14 days of being granted leave to defend or such longer period as the Court may direct. At this hearing, Mr Trevisan also sought an order that James Donnelly, legal counsel to a related entity of MCH Agency, be made available for -- 10 of 100 -- [2026] WASC 317 GETHING J Page 11 cross-examination at the hearing on 30 June 2026. I declined to do so given the summary nature of the hearing in relation to each of the two issues.1 13 The Plaintiffs read and rely on the following affidavits in relation to both issues: (a) an affidavit affirmed by Mr Donnelly on 13 August 2024 (First Donnelly Affidavit); (b) an affidavit affirmed by Mr Donnelly on 14 August 2024 (Second Donnelly Affidavit); (c) an affidavit affirmed by Mr Donnelly on 8 April 2026 (Third Donnelly Affidavit); (d) an affidavit affirmed by Michelle Dean, a partner of the Plaintiffs' lawyers, on 15 April 2026 (First Dean Affidavit); (e) an affidavit affirmed by Ms Dean on 23 April 2026 (Second Dean Affidavit); and (f) an affidavit affirmed by Mr Donnelly on 17 June 2026 (Fourth Donnelly Affidavit). The Plaintiffs also rely on submissions filed 15 April 2026, 23 April 2026, and 17 June 2026 (Plaintiff's Submissions). 14 Mr Trevisan reads and relies on the following affidavits affirmed by him: (a) 28 January 2025 (First Trevisan Affidavit); (b) 25 March 2026 (Second Trevisan Affidavit); (c) 23 April 2026 (Third Trevisan Affidavit); (d) 3 June 2026 (Fourth Trevisan Affidavit); and (e) 24 June 2026 (Fifth Trevisan Affidavit). Mr Trevisan also relies on submissions filed 31 May 2026 and 24 June 2026 (Defendant's Submissions).2 1 Transcript 11.6.26, pages 13 - 16. -- 11 of 100 -- [2026] WASC 317 GETHING J Page 12 15 The Set Aside Application and the Summary Judgment Application are separate and discrete applications. They involve different considerations, though in relation to the same broad factual matrix. Although the applications are being heard together, I have been careful not to conflate the issues. The Set Aside Application should be dealt with first. The Plaintiffs resist the Set Aside Application and say that the Settlement Deed should be enforced according to its terms. 16 For the reasons which follow, I decline to settle, sign and seal the March Consent Order. However, the Plaintiffs have persuaded me that the underlying Settlement Deed should be enforced summarily. The appropriate final orders are: (a) there be judgment for the MCH Claremont and MCH Booragoon against Mr Trevisan in the sum of $90,000; (b) Mr Trevisan pay MCH Claremont and MCH Booragoon interest in the sum of $90,000 from 9 December 2025 until judgment at the rate of 6% per annum above the cash rate target published by the Reserve Bank of Australia calculated on the actual number of days elapsed on the basis of a 365 day year, and accruing and compounding daily; and (c) Mr Trevisan do pay the Plaintiffs' costs of the action on a party and party basis, to be taxed if not agreed. Had I not been persuaded to summarily enforce the Settlement Deed, I would have entered summary judgment for MCH Booragoon against Mr Trevisan in the amount now claimed. 17 In coming to this conclusion, I deal with the following matters: • The Plaintiffs' evidence. • Are the Plaintiffs entitled to judgment in terms of the March Consent Order? • Has MCH Booragoon established a prima face entitlement to judgment? • Does Mr Trevisan have an arguable defence to the claim? 2 I note these submissions were subsequently replaced and consolidated with the submissions filed on 3 June 2026. However, the submissions remained dated 31 May 2026. So I refer to them as such. -- 12 of 100 -- [2026] WASC 317 GETHING J Page 13 • Is there 'some other reason' not to award summary judgment in relation to the claim? • What final orders are appropriate? 18 In dealing with the applications, I am mindful that Mr Trevisan is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the Court rules.3 The Court is required to approach the documents in which he articulates his defence with some flexibility.4 The Court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his position, there is no viable case which, with appropriate amendment or permissible assistance from the Court, could be put into proper form.5 A 'frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.6 19 One 'abiding difficulty' faced by the Court is 'the tension between the duty of a … judge to ensure a fair and just [hearing] and the requirement that the Court maintain a position of neutrality and impartiality as between the parties'.7 The Court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.8 The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.9 That is what I have sought to do in this case. 3 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court). 4 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). 5 Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi). 6 Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Kounis v Westpac Banking Corporation [2023] WASCA 185 [11] (reasons of the court) (Kounis); Sethi [27]. 7 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic). 8 Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court). 9 Zerjavic [74] - [75]. -- 13 of 100 -- [2026] WASC 317 GETHING J Page 14 2. The Plaintiffs' evidence 2.1 Overview 20 In this part I set out the evidence on which the Plaintiffs rely to both found their argument that the Settlement Deed should be enforced according to its terms and, in the alternative, for summary judgment. 2.2 MCH Claremont 21 On or about 23 December 2021, MCH Agency was appointed a trustee of the Iris Claremont Security Trust in accordance with the terms of a document entitled 'Security Trust Deed - Claremont' dated 23 December 2023 (Claremont Security Trust Deed).10 22 On or about 23 December 2021, MCH Claremont, MCH Agency, Iris Terraces, Perpetual MCP and Iris Residential executed the Claremont Security Trust Deed with Mr Trevisan.11 23 On or about 23 December 2021, MCH Claremont, MCH Agency, Iris Terraces, Perpetual MCP and Iris Residential executed a written agreement whereby Perpetual MCP provided a non-revolving cash advance facility with a facility limit of $22,400,000 (being what I have defined as the Claremont Facility) to Iris Terraces (Original Claremont Facility Agreement). The Claremont Facility was secured by a registered mortgage over certain land in Claremont (Claremont Land). The terms of the Claremont Facility were such that the security for that facility was cross-collateralised to any other borrowing from Perpetual MCP, together with cross-default provisions.12 24 Pursuant to the terms of the Original Claremont Facility Agreement, on 23 December 2021, Perpetual MCP provided Iris Terraces with an advance of $19,039,047.95.13 25 On or about 23 December 2021, MCH Claremont and Mr Trevisan executed a deed entitled 'Guarantee and Indemnity' (Trevisan Claremont Guarantee). The document on its face bears a handwritten signature which purports to be that of Mr Trevisan, and that of a witness.14 10 First Donnelly Affidavit, par 6, JBD-5. 11 First Donnelly Affidavit, par 13, JBD-5. 12 First Donnelly Affidavit, par 11, JBD-9. 13 First Donnelly Affidavit, par 12. 14 First Donnelly Affidavit, par 14, JBD-11. -- 14 of 100 -- [2026] WASC 317 GETHING J Page 15 26 The Plaintiffs submit that, properly construed, the Trevisan Claremont Guarantee provided that Mr Trevisan unconditionally and irrevocably guaranteed the punctual payment by Iris Terraces to MCH Claremont (clause 3.1(a)). Further, if Iris Terraces failed to pay the whole amount which Mr Trevisan guaranteed (Guaranteed Money) when due, then he was to pay the whole amount of the Guaranteed Money to MCH Claremont immediately on demand (clause 3.2). 27 On or about 22 December 2023, MCH Booragoon, MCH Agency, Iris Terraces, Perpetual MCP, Iris Residential, Amara and Mr Trevisan executed a written agreement entitled 'Claremont Amendment and Restatement Deed' to amend and restate the Original Claremont Facility Agreement (Restatement Deed). I will refer to the Original Claremont Facility Agreement as amended and restated as the 'Claremont Facility Agreement'. Relevantly for present purposes, the effect of the Restatement Deed was to increase the Claremont Facility limit and to extend the termination date to 23 April 2024.15 28 By 24 January 2024 the aggregate amount of interest and line fees due and payable by Iris Terraces in accordance with the terms of the Claremont Facility Agreement was $354,743.83. Iris Terraces failed to pay this amount to MCH Agency on 24 January 2024.16 29 On 6 February 2024, MCH Agency and MCH Claremont caused a notice of demand to be sent to Iris Terraces, Mr Trevisan and others pursuant to the Claremont Facility Agreement (First Claremont Notice of Demand). The First Claremont Notice of Demand, amongst other things, stated that:17 (a) an 'Event of Default' had occurred under clause 13.1(a) of the Claremont Facility Agreement (Claremont Event of Default); and (b) the total amount of interest and line fees due and unpaid as at 24 January 2024 totalled $354,743.83, which was to be paid 'as soon as possible'. 15 First Donnelly Affidavit, par 15, JBD-12. 16 First Donnelly Affidavit, par 16, JBD-7. 17 First Donnelly Affidavit, par 17, JBD-13. -- 15 of 100 -- [2026] WASC 317 GETHING J Page 16 30 Iris Terraces failed to comply with the First Claremont Notice of Demand and remedy the Claremont Event of Default, by failing to pay the sum of $354,743.83 as soon as possible or at all.18 31 The balance owed by Iris Terraces on 18 April 2024 under the terms of the Claremont Facility Agreement was $25,004,960.62. The accrued interest and security trustee fees as at 18 April 2024 were $225,925.87 bringing the total amount outstanding to $25,230,886.49.19 32 On 18 April 2024, MCH Agency and MCH Agency Claremont caused a second notice of demand to be sent to Iris Terraces, Mr Trevisan and others pursuant to the Claremont Facility Agreement (Second Claremont Notice of Demand). The Second Claremont Notice of Demand stated, amongst other things, that:20 (a) the Claremont Event of Default was subsisting; (b) the total amount owing now consisted of the outstanding principal amount, any unpaid accrued interest or fees and any other money owing by Iris Terraces; (c) the total amount due and payable as at 18 April 2024 totalled $25,230,886.49, which was to be paid to MCH Agency immediately; and (d) all, or any remaining parts, of the Claremont Facility Agreement were cancelled. 33 Iris Terraces failed to comply with the Second Claremont Notice of Demand by failing to pay the sum of $25,230,886.49 as soon as possible or at all.21 34 The balance owed by Iris Terraces on 15 May 2024 under the terms of the Claremont Facility Agreement was $25,431,424.08. However, the accrued interest and security trustee fees as at 15 May 2024 were $189,924.76, bringing the total outstanding amount to $25,621,366.84.22 35 On or about 15 May 2024, MCH Claremont caused a notice of demand to be sent to Mr Trevisan pursuant to the terms of the Trevisan 18 First Donnelly Affidavit, par 18. 19 First Donnelly Affidavit, par 19. 20 First Donnelly Affidavit, par 20, JBD-14. 21 First Donnelly Affidavit, par 21. 22 First Donnelly Affidavit, par 22. -- 16 of 100 -- [2026] WASC 317 GETHING J Page 17 Claremont Guarantee (Trevisan Claremont Demand) demanding payment of the sum of $25,621,366.84 within 21 days. Mr Trevisan failed to comply with the Trevisan Claremont Demand by failing to pay the sum of $25,621,366.84 by the specified time or at all.23 36 On 13 August 2024, MCH Claremont caused to be issued a certificate verifying the amount owing under the Trevisan Claremont Guarantee and Claremont Security Trust Deed. Relevantly, it certified that as at 13 August 2024, the amount payable by Mr Trevisan to MCH Agency under the Trevisan Claremont Guarantee and the Claremont Security Trust Deed was $27,064,484.72 (excluding legal costs and other expenses incurred by MCH Agency from 28 June 2024), with interest continuing to accrue.24 2.3 Booragoon Facility 37 On or about 6 April 2023, MCH Agency was appointed a trustee of the Iris Booragoon Security Trust in accordance with the terms of a document entitled 'Security Trust Deed - Booragoon' dated 6 April 2023 (Booragoon Security Trust Deed).25 On or about 6 April 2023, MCH Booragoon, MCH Agency, Perpetual Metrics, Iris Residential and Amara executed the Booragoon Security Trust Deed.26 38 On or about 6 April 2023, MCH Booragoon, MCH Agency, Iris Residential, Perpetual Metrics and Amara executed a written agreement whereby Perpetual Metrics provided a non-revolving cash advance facility with a facility limit of $12,480,000 (being what I have defined as the Booragoon Facility) to Iris Residential (Booragoon Facility Agreement). The Booragoon Facility was secured by a registered mortgage over certain land in Booragoon (Booragoon Land).27 The terms of the Booragoon Facility were such that the security for that facility was cross-collateralised, relevantly, to the Claremont Facility, together with cross-default provisions. 39 Pursuant to the terms of the Booragoon Facility Agreement, on or about 11 April 2023, Perpetual Metrics provided Iris Residential with an advance of $11,246,495.28 23 First Donnelly Affidavit, par 23, JBD-15. 24 First Donnelly Affidavit, par 25, JBD-16. 25 First Donnelly Affidavit, par 7, JBD-6. 26 First Donnelly Affidavit, par 28. 27 First Donnelly Affidavit, par 26, JBD-17. 28 First Donnelly Affidavit, par 27, JBD-18. -- 17 of 100 -- [2026] WASC 317 GETHING J Page 18 40 The Plaintiffs submit that, properly construed, the Booragoon Facility Agreement provided: (a) any outstanding amount of principal under the Booragoon Facility Agreement and all other amounts owing to MCH Agency, MCH Booragoon or Perpetual Metrics under or in connection with the Booragoon Facility Agreement was payable by the termination date (clause 8.1); (b) the termination date was defined to be 12 months after Financial Close (clause 1.1), which in turn was defined as the time that all conditions precedent under clause 3.1 had been satisfied or waived, and the first advance had been provided (clause 1.1), which in this case was 11 April 2024; (c) an Event of Default under the Claremont Facility Agreement would also be considered an Event of Default under the Booragoon Facility Agreement (clause 13.1(w)); and (d) upon any Event of Default, Iris Residential must repay the whole of the outstanding principal amount and all other amounts owing to the finance parties (including MCH Agency and MCH Booragoon) (clauses 8.1, 13.2(a)(ii)). 41 On or about 6 April 2023, MCH Booragoon and Mr Trevisan executed a deed entitled 'Guarantee and Indemnity' (Trevisan Booragoon Guarantee). The document on its face bears a handwritten signature which purports to be that of Mr Trevisan, and that of a witness.29 42 On 21 February 2024, MCH Agency and MCH Booragoon caused a notice to be sent to Iris Residential, Mr Trevisan and others under the Booragoon Facility Agreement (Booragoon Default Notice). The Booragoon Default Notice stated, amongst other things:30 (a) the Claremont Event of Default had occurred; and (b) this had resulted in an event of default occurring pursuant to clause 13.1(w) of the Booragoon Facility Agreement (First Booragoon Event of Default). 29 First Donnelly Affidavit, par 29, JBD-19. 30 First Donnelly Affidavit, par 30, JBD-20. -- 18 of 100 -- [2026] WASC 317 GETHING J Page 19 43 The balance owed by Iris Residential on 18 April 2024 under the terms of the Booragoon Facility Agreement was $12,705,504.77.31 44 As Iris Residential had not repaid any of the amounts outstanding under the Booragoon Facility Agreement by 11 April 2024, another Event of Default had occurred under the Booragoon Facility Agreement.32 45 On 18 April 2024, MCH Agency and MCH Booragoon instructed its lawyers to send a notice of demand to Iris Residential, Mr Trevisan and others under the Booragoon Facility Agreement (Booragoon Notice of Demand). The Booragoon Notice of Demand stated that, amongst other things:33 (a) the First Booragoon Event of Default had occurred and subsists; (b) a second Event of Default pursuant to the Booragoon Facility Agreement had occurred; and (c) $12,656,105.34 was to be paid to Perpetual Metrics as soon as possible. 46 The accrued interest and security trustee fees as at 18 April 2024, as well as overdue interest, were not included in the calculations for the amount stated in the Booragoon Notice of Demand. The interest and security trustee fees as at 18 April 2024 were $49,399.43 bringing the total outstanding to $12,705,504,77.34 47 Iris Residential and Mr Trevisan failed to comply with the Booragoon Notice of Demand by failing to pay MCH Agency the outstanding principal as soon as possible or at all.35 48 The principal amount stated as owing by Iris Residential on 15 May 2024 under the terms of the Booragoon Facility Agreement was $12,834,685.71.36 49 On or about 15 May 2024, MCH Booragoon caused a notice of demand to be sent to Mr Trevisan pursuant to the terms of the Trevisan Booragoon Guarantee (Trevisan Booragoon Demand). The amount 31 First Donnelly Affidavit, par 31. 32 First Donnelly Affidavit, JBD-17. 33 First Donnelly Affidavit, par 32. 34 First Donnelly Affidavit, par 32, JBD-21. 35 First Donnelly Affidavit, par 33. 36 First Donnelly Affidavit, par 34. -- 19 of 100 -- [2026] WASC 317 GETHING J Page 20 stated as due to be paid in the Trevisan Booragoon Demand was $12,728,379.67. However, the accrued interest and security trustee fees as at 15 May 2024, as well as overdue interest, were not included in the calculations for the amount stated in the Trevisan Booragoon Demand. The accrued interest and security trustee fees as at 18 April 2024 were $106,306.04, bringing the total outstanding amount to $12,834,685.71.37 50 Mr Trevisan failed to comply with the Trevisan Booragoon Demand by failing to pay the sum of $12,728,379.67 by the time specified or at all.38 51 On 13 August 2024, MCH Claremont caused to be issued a certificate verifying the amount owing under the Trevisan Booragoon Guarantee and the Booragoon Security Trust Deed. Relevantly, it certified that as at 13 August 2024, the amount payable by Mr Trevisan to MCH Agency under the Trevisan Booragoon Guarantee and the Booragoon Security Trust Deed was $13,320,067.90 (excluding legal costs and other expenses incurred by MCH Agency from 14 August 2024), together with interest.39 2.4 Plaintiffs' actions to enforce their securities 52 On or about 29 April 2024, Robert Michael Kirman and Linda Methven Smith (both of McGrath Nicol and together, the Agents) were appointed as Agents for MCH Claremont as mortgagee in possession in relation to the Claremont Land pursuant to a written agreement titled 'Deed of Appointment of Agents for Mortgagee in Possession - Claremont'. That agreement was amended and restated by a deed dated 2 May 2024.40 53 On or about 29 April 2024, the Agents were appointed as Agents for MCH Booragoon as mortgagee in possession in relation to the Booragoon Land pursuant to a written agreement titled 'Deed of Appointment of Agents for Mortgagee in Possession - Booragoon'. That agreement was also amended and restated by a deed dated 2 May 2024.41 37 First Donnelly Affidavit, par 35, JBD-22. 38 First Donnelly Affidavit, par 36. 39 First Donnelly Affidavit, pars 37 and 44(b)(ii). 40 Third Donnelly Affidavit, pars 11 - 12. 41 Third Donnelly Affidavit, pars 12 - 13. -- 20 of 100 -- [2026] WASC 317 GETHING J Page 21 54 On or about 27 May 2024, the Agents engaged Cygnet West to market the Claremont Land and the Booragoon Land for sale. MCH Agency approved the marketing campaign and timeframe proposed by Cygnet West for the Claremont Land and the Booragoon Land. On or about 6 June 2024, Cygnet West commenced the marketing campaign to sell the Claremont Land and the Booragoon Land, seeking offers to purchase by no later than 4pm AWST on 18 July 2024 (Sales Campaign). The Sales Campaign was subsequently extended by one week, providing interested parties until 4pm AWST on 25 July 2024 to provide second round offers. MCH Agency approved this extension of the Sales Campaign. After the close of the Sales Campaign, there was some further negotiation with interested parties and some offers were adjusted as a result. However, the Agents did not accept any of the offers received during the Sales Campaign or the subsequent negotiation period.42 55 To place what happened next in context, Mr Donnelly deposes that:43 (a) the Claremont Facility loan balance as at 26 June 2024 was $26,135,780.72; and (b) the Booragoon Facility loan balance as at 11 July 2024 was $13,006,434.02. 56 Mr Donnelly deposes that the highest offers for both the Claremont Land and the Booragoon Land received in connection with the Sales Campaign were, in aggregate, substantially lower than the aggregate balance of the debt owing to MCH Agency under the Claremont Facility Agreement and the Booragoon Facility Agreement at that time. As such, had these offers been accepted, there would have remained a material amount of debt owing. It is likely that the shortfall would have exceeded $12 million. As the offers received were substantially lower than the balance of the debt, Mr Donnelly was instructed by the Investment Committee of Metrics Credit Partners Pty Ltd (Metrics) that employees of Metrics representing funds managed by Metrics that invest in real estate assets (the Acquiring Funds) would be assessing the Claremont Land and the Booragoon Land for the purposes of making an offer to acquire them.44 42 Third Donnelly Affidavit, pars 15 - 19. 43 Third Donnelly Affidavit, par 20. 44 Third Donnelly Affidavit, pars 21 - 22. -- 21 of 100 -- [2026] WASC 317 GETHING J Page 22 57 Mr Donnelly explains that Metrics is a fund manager that manages multiple funds, including the funds that provided the debt financing under the Claremont Facility Agreement and the Booragoon Facility Agreement, and other funds that invest in real estate assets. Metrics and MCH Agency are related companies and are ultimately owned by the same holding company. As a result of the conflict of interest between MCH Agency and the Acquiring Funds, information barriers were put in place and all material communications between the representatives of MCH Agency and the representatives of the Acquiring Funds in respect of the proposed purchase of the Claremont Land and Booragoon Land were conducted via the Agents and/or legal advisors.45 58 Mr Donnelly then deposes about conversations between him, George Pitsaris (an Investment Director at Metrics) and Mr Trevisan in relation to the sale of the Claremont Land and the Booragoon Land by the Agents.46 He also deposes as to his response to Mr Trevisan's evidence as to conversations between the two of them.47 59 Mr Donnelly then goes on to depose that on or about 4 April 2025, the Claremont Land was sold. The purchaser of the Claremont Land was Claremont Devco Pty Ltd (ACN 682 869 334) (Claremont Devco). Claremont Devco is ultimately owned by funds managed by Metrics (again noting that Metrics is an affiliated company of MCH Agency). The Claremont Land was subject to an option granted to Development WA, whereby Development WA could buy back the Claremont Land if certain development milestones were not satisfied. Prior to the settlement of any sale of the Claremont Land, an amendment to this option arrangement needed to be negotiated with Development WA. The negotiations with Development WA and finalisation of the amendment to the option arrangement resulted in settlement of the sale of the Claremont Land occurring later than was anticipated.48 60 The total purchase price for the sale of the Claremont Land to Claremont Devco was $31,000,000.00, exclusive of GST. MCH Agency, as mortgagee in possession for Iris Terraces, received the amount of $33,242,914.14 as the net proceeds of sale of the Claremont Land. The net proceeds of sale of the Claremont Land were applied to 45 Third Donnelly Affidavit, pars 23 - 24. 46 Third Donnelly Affidavit, par 25. 47 Third Donnelly Affidavit, par 26. 48 Third Donnelly Affidavit, pars 28 - 30. -- 22 of 100 -- [2026] WASC 317 GETHING J Page 23 the amount owing under the Claremont Facility. MCH Agency later received a further amount of $5,229.88 from the sale of the Claremont Land. This amount was paid to MCH Agency by the Agents and represented a GST refund that they had received in respect of their appointment. This amount was also applied to the amount owing under the Claremont Facility.49 61 On or about 30 April 2025, MCH Claremont and the Agents executed a written agreement where the parties agreed for the Agents to retire from their appointment as Agents for the mortgagee in possession of the Claremont Land.50 2.5 Settlement Deed 62 On or about 9 April 2025, MCH Agency, MCH Claremont, MCH Booragoon, Mr Trevisan and others entered into a settlement deed (which I have defined at [9] as the Settlement Deed).51 The recitals set out the background to the transaction in the following terms:52 Background A On 23 December 2021, the Claremont Facility Agreement was entered into. Various securities secure Iris Terrace's obligations under the Claremont Facility Agreement, as amended from time to time. B On 23 December 2021, Simon Trevisan provided to MCH Claremont a guarantee and indemnity in which he guaranteed the payment of Iris Terraces of amounts owing to MCH Agency and MCH Claremont. C On or around December 2023, the Claremont Facility Agreement was amended pursuant to a document titled 'Amendment and Restatement Deed - Claremont' between MCH Agency, MCH Claremont, Iris Terraces, Perpetual MCP, Iris Residential, Amara 2018 and Simon Trevisan. D On 24 January 2024, Iris Terraces failed to pay what are amounts in respect of interest and line fees. On 6 February 2024, MCH Agency and MCH Claremont issued a notice of the default and demanded payment of the outstanding amount. This demand was not satisfied on time, or at all. 49 Third Donnelly Affidavit, pars 31 - 34. 50 Third Donnelly Affidavit, par 35. 51 Third Donnelly Affidavit, par 36, JBD-9. 52 Third Donnelly Affidavit, par 36, JBD-9 (pages 89 - 90). -- 23 of 100 -- [2026] WASC 317 GETHING J Page 24 E On 18 April 2024, MCH Agency and MCH Claremont issued a notice of the default subsisting, declared the Outstanding Principal owing by Iris Terraces to be immediately due and payable and demanded payment of that amount. This demand was not satisfied on time, or at all. F On 2 May 2024, MCH Claremont appointed the Agents - Claremont as mortgagee in possession of the Claremont Property. G On 6 April 2023, the Booragoon Facility Agreement was entered into. Various securities secure Iris Residential's obligations under the Booragoon Facility Agreement, as amended from time to time. H On 6 April 2023, Simon Trevisan provided to MCH Booragoon a guarantee and indemnity in which he guaranteed the payment of Iris Residential of amounts owing to MCH Agency and MCH Booragoon. I MCH Agency provided financial accommodation to Iris Residential pursuant to the Booragoon Facility Agreement. J On 21 February 2024, MCH Agency and MCH Booragoon issued a notice to Iris Residential that the defaults set out in paragraph D above were events of default under the Booragoon Facility Agreement. K On 11 April 2024, being the Termination Date, Iris Residential failed to pay all amounts owing under the Booragoon Facility Agreement. L On 18 April 2024, MCH Agency and MCH Booragoon issued a notice to Iris Residential and Simon Trevisan that there were events of default under the Booragoon Facility Agreement, and demanded all amounts outstanding under the Booragoon Facility Agreement. This demand was not satisfied on time, or at all. M On 2 May 2024, MCH Booragoon appointed the Agents - Booragoon as mortgagee in possession of the Booragoon Property. N On 15 May 2024, MCH Claremont and MCH Booragoon issued Notices to Simon Trevisan demanding payment under the guarantee and indemnity in paragraph B and G above. This demand was not satisfied on time, or at all. O On 28 June 2024, MCH Claremont and MCH Booragoon issued proceedings against Simon Trevisan for repayment of the Debt, being Supreme Court of Western Australia proceedings CIV 1781 of 2024 (Proceedings). -- 24 of 100 -- [2026] WASC 317 GETHING J Page 25 P The Agents - Claremont and the Agents - Booragoon initiated a sales campaign for the Claremont Property and the Booragoon Property. Q The Claremont Buyer intends to purchase the Claremont Property for a price above all offers received from other parties from the sales campaign in paragraph P above; R The Booragoon Buyer intends to purchase the Booragoon Property for a price above all offers received from other parties from the sales campaign in paragraph P above; S On 28 January 2025, Simon Trevisan filed and served an affidavit in the Proceedings alleging various claims against the Metrics Parties. T Without admission of liability, the Parties have agreed to fully and finally settle the Proceedings and release all Claims between them, except for the Excluded Claims. 63 The key terms of the Settlement Deed were that: (a) in consideration for the Plaintiffs releasing Mr Trevisan from any and all claims, Mr Trevisan would pay the Plaintiffs an initial payment of $20,000 one day after execution of the Settlement Deed (Initial Payment) and a further payment of $90,000 within eight months after execution of the Deed of Settlement (Deferred Payment) plus interest (clause 3(a)); and (b) if the Deferred Payment was not paid in time, the Plaintiffs were entitled to file a consent order (which they held in escrow), pursuant to which judgment would be entered for the Plaintiffs against Mr Trevisan for the sum of $90,000 plus interest and costs (which I have defined as the March Consent Order) (clause 5(g) and Schedule 3). 64 I have set out the terms of the March Consent Orders at [9]. 65 On or about 9 April 2025, Mr Trevisan paid the Initial Payment of $20,000 to MCH Agency.53 66 On 9 April 2025, Mr Trevisan delivered a wet-ink signed copy of the March Consent Order to Corrs Chambers Westgarth, for Corrs Chambers Westgarth to hold in escrow.54 53 Third Donnelly Affidavit, par 38. 54 Third Donnelly Affidavit, par 39. -- 25 of 100 -- [2026] WASC 317 GETHING J Page 26 67 The Initial Payment was applied to the balance owing under the Claremont Facility.55 2.6 Mr Donnelly's knowledge as at 9 April 2025 68 Mr Donnelly's knowledge and communications with Mr Trevisan are significant to Mr Trevisan's claims in relation to the Settlement Deed, so I will quote his evidence:56 Anticipated shortfall as at 9 April 2025 41 As at 9 April 2025, MCH Agency was negotiating the terms of a sale of the Booragoon Land to Booragoon Developer Pty Ltd (ACN 682 962 287) (Booragoon Developer), which is an entity that is wholly owned by funds managed by Metrics. 42 As at 9 April 2025, I was aware the likely sale price of the Booragoon Land was $13,500,000 as this was the amount that had been indicatively offered by representatives of the Booragoon Developer, but as at that date the terms of the sale of the Booragoon Land to the Booragoon Developer had not been finalised (as is set out below) and the sales price was indicative and not final. 43 As at 9 April 2025, because the sales price in respect of the Booragoon Land was not final and the settlement date in respect of the sale of the Booragoon Land was not known, I was not aware of what the balance under the Booragoon Facility Agreement would be after the sale of the Booragoon Land. However, based on the likely sale price of the Booragoon Land of $13.5 million, and my knowledge at the time of the approximate amount outstanding under the Booragoon Facility, which was around $14.5 million I was aware that, as at 9 April 2025, a shortfall would exist, and that this shortfall would likely be in excess of $1 million. My knowledge of the approximate amount outstanding under the Booragoon Facility was based on conversations with the Metrics Loan Admin Team and other employees of Metrics who had access to Metrics' internal loan administration system. I did not retain a point in time copy of the record of the balance of the Booragoon Facility from the internal Metrics loan administration system as at 9 April 2025. Attached and marked JBD-12 is a true copy of a loan account statement for the Booragoon Facility which I obtained in the preparation of this affidavit. This loan statement shows a balance of $14,455,922.76 as at 14 March 2025. 55 Third Donnelly Affidavit, par 40. 56 Third Donnelly Affidavit, pars 41 - 45. -- 26 of 100 -- [2026] WASC 317 GETHING J Page 27 44 The shortfall was materially greater than the combined value of the Initial Payment and the Deferred Payment set out in the Settlement Deed. 45 My recollection is that in the course of communications I had with Mr Trevisan, I or any other representatives of MCH Agency did not: (a) inform Mr Trevisan of the proposed purchase price in respect of either of the Claremont Land or Booragoon Land; or (b) provide any indication as to his exposure as guarantor of the debts under the Claremont Facility Agreement and the Booragoon Facility Agreement after the sale of the Claremont Land and Booragoon Land. 2.7 Sale of the Booragoon Land 69 On or about 6 May 2025, MCH Agency and Booragoon Developer Pty Ltd (Booragoon Developer) executed two written agreements for MCH Agency to sell and Booragoon Developer to buy the land comprising the Booragoon Land. The final sale price in the two written agreements totals $13.5 million exclusive of GST.57 70 A part of the Booragoon Land was subject to a car park licencing agreement that, among other things, required the licensor to develop additional car parking as part of any development of the site. This licence was seen as uncommercial by Booragoon Developer, and so it was necessary to re-negotiate the terms of the licence to make them acceptable to Booragoon Developer before settlement of the sale could occur. The negotiation in respect of re-negotiation of this licence resulted in the settlement of the sale of the Booragoon Land occurring later than was anticipated.58 71 On 18 July 2025, the settlement for sale of the Booragoon Land occurred. The total amount of the price for the Booragoon Land to Booragoon Developer was $13,500,000.00, exclusive of GST. MCH Agency, as mortgagee in possession for Iris Residential, received the amount of $13,257,043.01 as the net proceeds of sale of the Booragoon Land.59 57 Third Donnelly Affidavit, par 46. 58 Third Donnelly Affidavit, par 48. 59 Third Donnelly Affidavit, pars 47, 49, 50. -- 27 of 100 -- [2026] WASC 317 GETHING J Page 28 72 Mr Donnelley deposes that the purchase price paid by the Booragoon Developer was greater than any offer received by the Agents during the sales campaign in 2024.60 73 The net proceeds of sale of the Booragoon Land were applied to the amount owing under the Booragoon Facility.61 74 On or around 2 September 2025, MCH Agency received an amount of $13,990.19 from the Agents comprising a GST refund and a licence fee collected in respect of the licence of the car park at the Booragoon Land, which represented the remaining proceeds in an account maintained by the Agents. This amount was also applied to the amount owing under the Booragoon Facility.62 75 On or about 3 September 2025, MCH Booragoon and the Agents executed a written agreement where the parties agreed for the Agents to retire from their appointment as Agents for the mortgagee in possession of the Booragoon Land.63 2.8 Deferred Payment 76 Mr Trevisan was required to make the Deferred Payment of $90,000 to MCH Agency pursuant to clause 3(a) of the Settlement Deed by 9 December 2025.64 77 As 8 April 2026, Mr Trevisan had not made the Deferred Payment to MCH Agency.65 2.9 Amount of the Plaintiffs' claims 78 As to the amount which the Plaintiffs say Mr Trevisan currently owes, Mr Donnelly deposes that:66 (a) MCH Claremont applied the net proceeds of sale of the Claremont Land, additional amounts received in relation to the sale of the Claremont Land, and the Initial Payment, to the outstanding balance under the Claremont Facility; 60 Third Donnelly Affidavit, par 51. 61 Third Donnelly Affidavit, par 52. 62 Third Donnelly Affidavit, pars 53, 54. 63 Third Donnelly Affidavit, par 55. 64 Third Donnelly Affidavit, par 56. 65 Third Donnelly Affidavit, par 56. 66 Third Donnelly Affidavit, pars 58 - 62. -- 28 of 100 -- [2026] WASC 317 GETHING J Page 29 (b) the transactions in (a) resulted in a surplus of $109.49 as a balance under the Claremont Facility; (c) the surplus in (b) was applied to the balance of the Booragoon Facility; (d) the net proceeds of sale of the Booragoon Land, additional amounts received in relation to the sale of the Booragoon Land, were applied to the outstanding balance under the Booragoon Facility; and (e) this left a balance under the Booragoon Facility of $1,956,469.76 as at 2 September 2025 (not including the accrual of interest on the loan account for the period after settlement of the sale of the Booragoon Land on 18 July 2025). 79 Mr Donnelly then deposes that, in the event that no order is made in terms of the March Consent Order, MCH Booragoon is entitled to:67 (a) payment of all outstanding monies due and owing by Iris Residential under the terms of the Booragoon Facility Agreement pursuant to clause 3.2 of the Trevisan Booragoon Guarantee, which is the sum of $2,085,825.11 as at 8 April 2026 (being the $1,956,469.76 owing as at 2 September 2025 plus interest calculated in accordance with clause 6.2(a)(iii) of the Booragoon Facility Agreement, being the rate of 7.25% per annum plus the Base Rate (as that term is defined in the Booragoon Facility Agreement) as published from time to time); (b) interest calculated in accordance with clause 6.2(a)(iii) of the Booragoon Facility Agreement, being the rate of 7.25% per annum plus the Base Rate (as that term is defined in the Booragoon Facility Agreement) as published from time to time; and (c) the costs of obtaining judgment on a full indemnity basis pursuant to clause 7.1 of the Trevisan Booragoon Guarantee. 80 MCH Booragoon claims interest on the basis that:68 (a) the amount outstanding under the Booragoon Facility Agreement was due and payable by 11 April 2024; 67 Third Donnelly Affidavit, par 63. 68 Plaintiffs' Submissions, 15 April 2026, pars 43 - 46. -- 29 of 100 -- [2026] WASC 317 GETHING J Page 30 (b) therefore, as at 2 September 2025, this amount is 'Overdue Money' as defined under the Booragoon Facility Agreement (clause 1.1); (c) pursuant to Booragoon Facility Agreement clause 6.2(a)(iii), interest is payable in respect of Overdue Money at the 'Overdue Rate'; (d) the Overdue Rate is the aggregate of the Base Rate, the Margin, and 4.00% per annum (clause 1.1); and (e) the Base Rate varies from time to time, whereas the Margin under the Booragoon Facility Agreement is defined to be a fixed rate of 3.25% per annum (clause 1.1). 81 In the alternative, MCH Booragoon claims pre-judgment interest pursuant to Supreme Court Act 1935 (WA) (SCA) s 32. 82 In the Fourth Donnelly Affidavit, Mr Donnelly deposes that the amount owing under the Booragoon Facility as at 16 June 2026 was $2,126,767.89 (excluding legal costs and other expenses incurred by MCH Agency from 2 September 2025). In doing so, he applied the rate of interest of 7.25% per annum plus the 'Base Rate' (as that term is defined in the Booragoon Facility Agreement) as published from time to time, starting from 2 September 2025. He annexes a 'Dobbs Certificate',69 signed by an officer of MCH Agency of 17 June 2026 (Booragoon Certificate).70 That certificate reads: 1 This is a certificate made in respect of: (a) the Booragoon Security Trust Deed; and (b) the Trevisan Booragoon Guarantee. 2 Capitalised terms used in this document that are not otherwise defined have the meaning attributed to them in the Booragoon Facility Agreement or the Trevisan Booragoon Guarantee. 3 Pursuant to clause 19.1 of the Booragoon Security Trust Deed, a certificate in writing signed by an officer of the Security Trustee certifying the amount payable by a Security Provider to the Security Trustee under the Booragoon Security Trust Deed or any Security Document or stating any other act, matter or thing 69 So called after the decision in Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643, 654 (Rich, Dixon, Evatt and McTiernan JJ) (Dobbs). 70 Fourth Donnelly Affidavit, pars 10 - 13, JBD-2. -- 30 of 100 -- [2026] WASC 317 GETHING J Page 31 relating to the Booragoon Security Trust Deed or any Security Document is (as against the Security Provider) sufficient evidence of the matters stated in it unless proved to be incorrect. 4 Pursuant to clause 8.9(a) of the Trevisan Booragoon Guarantee, a certificate by the Security Trustee relating to any Finance Document or as to its opinion in relation to any matter under any Finance Document is conclusive evidence against the Guarantor of the matters certified unless proven incorrect. 5 The Trevisan Booragoon Guarantee is a Finance Document (see definition of Finance Document and Collateral Security in clause 1.1 of the Booragoon Facility Agreement). 6 As an officer of MCH Agency, I am a person who is entitled to sign and certify the amount payable by the Security Provider and Guarantor under the Booragoon Security Trust Deed and the Trevisan Booragoon Guarantee. 7 I certify that, as at 2 September 2025: (a) the amount payable by Simon Trevisan to MCH Agency under the Trevisan Booragoon Guarantee and the Booragoon Security Trust Deed was $1,956,469.79 (excluding legal costs and other expenses incurred by MCH Agency from 2 September 2025); and (b) interest continued to accrue on the amount referred in paragraph (a) above in accordance with clause 6.2(a)(iii) of the Booragoon Facility Agreement. 8 I certify that, as at 16 June 2026: (a) the amount payable by Simon Trevisan to MCH Agency under the Trevisan Booragoon Guarantee and the Booragoon Security Trust Deed is $2,126,767.89 (excluding legal costs and other expenses incurred by MCH Agency from 2 September 2025); and (b) interest continues to accrue on the amount referred in paragraph (a) above in accordance with clause 6.2(a)(iii) of the Booragoon Facility Agreement. 3. Are the Plaintiffs entitled to judgment in terms of the March Consent Order? 3.1 The significance of Mr Trevisan being a litigant in person 83 The power of the Court to make orders by consent is set out in RSC O 43 r 16: -- 31 of 100 -- [2026] WASC 317 GETHING J Page 32 16. Consent orders (1) The parties to proceedings or their legal practitioners may file a written consent to the making of an order in those proceedings. (2) Upon the written consent being filed, the registrar, a master or a judge may settle, sign and seal the order without any other application being made in any case in which, in the opinion of the registrar, master or judge, the Court would make such an order upon consent of the parties or may bring the matter before the Court which may, if it thinks fit and without any other application being made, direct the registrar to settle, sign, and seal the order in accordance with the terms of consent. (3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Court. 84 The power is routinely used for both case management orders and judgments or other orders finally disposing of an action. In the latter case, the purpose or object of the rule is to save costs and Court time by enabling parties to give effect to their agreements efficiently and simply. As the Court of Appeal observed in Connor v Veitch:71 In providing a convenient procedural mechanism to give final effect to agreements by litigants these rules encourage the compromise of proceedings (or interlocutory issues arising in the course of proceedings). In that respect it is a well-established rule of public policy that settlement of litigation is to be encouraged in the public interest. It must, however, be remembered that in making a consent order the Court exercises judicial power - it performs a public function that operates to bind the parties … Accordingly, even though the parties may consent to particular orders, the Court may decline to make the orders. For example, the parties, by consent, cannot confer power on the Court to make orders which the Court lacks power to make… 85 However, as mentioned, because Mr Trevisan is a litigant in person, RSC O 42 r 8 applies, which I quote again for ease of reference: 71 Connor v Veitch [2023] WASCA 186 [20] - [21] (reasons of the Court) (references omitted) (Connor). -- 32 of 100 -- [2026] WASC 317 GETHING J Page 33 8. Entering judgment by consent where defendant has not appeared or is self-represented Where the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, or solicitor. The reference to 'such order', in context, is the entry of final judgment (so the rule does not apply to case management orders). 86 RSC O 42 r 7 addresses the situation in which the defendant is represented: 7. Entering judgment by consent when party appears by solicitor In any cause or matter where the defendant has appeared by a solicitor, no order for entering judgment shall be made by consent unless the consent of the defendant is given by the defendant's solicitor. 87 In Newcrest Mining Ltd v Thornton, French CJ said of RSC O 42 r 7 and r 8:72 Those rules are calculated to ensure that an informed consent is given by the defendant. They do not require any assessment by the Court of the merits of the compromise underlying the order. 88 The effect of RSC O 42 r 8 is that a defendant who is not represented cannot give his or her consent to judgment in writing, only 'in person' (or if given in writing, is subject to also being given in person).73 On attending before me in person on 11 March 2026, Mr Trevisan declined to give his consent. There is evidence that Mr Trevisan has been admitted to practice as a legal practitioner.74 However, in my view, the reference to the defendant being a barrister or solicitor in the concluding words of RSC O 42 r 8, is a reference to a person who currently holds a practising certificate entitling them to practice as a barrister or solicitor. There is no evidence that Mr Trevisan currently holds a practising certificate. Accordingly, pursuant to RSC O 42 r 8 I must decline to extract (that is, settle, sign and seal) the March Consent Order. 72 Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555 [15] (French CJ) (Newcrest); Civmec Construction & Engineering Pty Ltd v Mann (No 2) [2023] WASC 99 [39] (Tottle J) (Civmec). 73 Though a defendant may appear ‘in person' by video link or audio link: Civmec [39]. 74 Second Dean Affidavit, par 7. -- 33 of 100 -- [2026] WASC 317 GETHING J Page 34 3.2 The circumstances in which the Court can decline to extract a consent order 89 Given that the issue of whether the Court should decline to extract the March Consent Order was fully argued on the basis of whether or not the Settlement Deed should be enforced, I will deal with this argument (and in case I am wrong about my conclusion in section 3.1). However, as will become apparent in section 3.12, it is open to the Plaintiffs, in this action, to seek to summarily enforce the Settlement Deed. 90 The Court of Appeal considered the issue of the power of the Court to decline to extract a consent order in Connor.75 In that case, the parties signed a consent order to determine the appeal following a mediation. Ms Veitch, the respondent, had instructed her counsel to sign the consent order. However, after it was filed with the Court to extract, she requested the Court to not extract the consent order and instead list the action for a further mediation. Ms Veitch filed affidavit evidence to the effect that she felt stressed, confused and scared towards the end of the mediation, and felt that she had no option but to agree to resolve the dispute on the terms offered, even though she was not happy with it. The Court of Appeal observed that the case was, in substance, one in which Ms Veitch 'had reconsidered her position and wished to withdraw her consent to the parties' compromise of the litigation'.76 The Court of Appeal was of the view that it had no discretion to do so. Even if it had, it would have declined to exercise the discretion, observing that the rules did not provide for a litigant to have a 'cooling off' period having consented to the orders.77 91 The Court referred to the decision of the High Court in Harvey v Phillips,78 and identified three situations in which the Court might in the exercise of its discretion refuse to give effect to or to act on a compromise:79 1. The party's legal representative was under a misapprehension or made a mistake in consenting to the order or compromise. 2. The assistance of the Court was required to enforce and carry into effect the compromise. 75 Connor. 76 Connor [23]. 77 Connor [34]. 78 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 (Phillips). 79 Connor [27]. -- 34 of 100 -- [2026] WASC 317 GETHING J Page 35 3. The party's legal representative had acted outside his or her actual authority, express or implied, in agreeing to the compromise - in other words the legal representative had mere apparent authority and lacked actual authority. 92 The Court in Connor found that the situation before it did not involve any of those three situations. It noted that the High Court in Phillips also addressed that scenario:80 But in the case of a compromise which is made within the actual as well as apparent authority of counsel a Court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. 93 The Court in Connor then concluded:81 In short, where the party's legal representative acts within his or her actual authority in entering into the compromise, the question becomes whether the agreement on which the consent notice is based can be invalidated in accordance with usual contractual or equitable principles. It is not simply a matter of exercising a discretion to prevent injustice. The discretion to decline to enforce a compromise does not arise where the party who seeks to impeach the compromise expressly authorised the compromise even if that authority was given after considerable equivocation and under pressure. The party must instead establish some ground sufficient to render the compromise void or voidable or to entitle the party to equitable or other relief…. Ms Veitch did not seek to challenge the lawfulness of the compromise. It was not suggested that there was some ground on which the compromise was void or voidable or that Ms Veitch was otherwise entitled on the facts to be relieved from her bargain as a matter of law. Having reflected on the terms of the settlement, and her dissatisfaction with it, Ms Veitch instead appealed to more general notions of justice and fairness. That appeal must fail. The case is relevantly indistinguishable from Harvey v Phillips. In the circumstances of this case the Court does not possess a discretion to intercept extraction and issue of final orders in accordance with the consent notice. Nor does the Court possess a discretion to set aside the compromise provided for in the consent notice. 94 And:82 80 Phillips 243 - 244 (Dixon CJ, McTiernan, Williams, Webb & Fullagar JJ). 81 Connor [30] - [31] (reference omitted). -- 35 of 100 -- [2026] WASC 317 GETHING J Page 36 Counsel for Ms Veitch emphasised the prejudice that would be suffered by Ms Veitch if orders were extracted and issued. In that respect Ms Veitch's cross-appeal will not be determined on its merits. But the issue is one which must be considered from the appellant's point of view as well as that of Ms Veitch. Accepting, consistently with Ms Veitch's evidence, that she did so reluctantly and feeling stressed, confused and scared, it remains the position that Ms Veitch authorised her solicitor to agree to the compromise. The appellant was entitled to consider that the terms of the consent notice were bringing an end to the litigation. Where, as here, there is no disentitling conduct on the part of Ms Veitch's contractual counterparty - and Ms Veitch herself makes no complaint in that regard - the Court should respect the compromise reached by the parties. That is all the more so where it is a compromise entered into following Court mediation. Moreover, were the matter to be resolved solely as an exercise of discretion, the public interest must be considered. If the Court too readily disregards compromises of litigation made following mediation the important object of promoting the settlement of litigation will be hindered. The interests of justice, including the interests of the due administration of justice, will not be served by the Court declining to extract and issue final orders in accordance with a consent notice following mediation simply because one litigant wishes to recant from the compromise having rethought his or her position. 95 Applying the principles in Connor to the facts of the present case: (a) none of the three situations in [91] are relied on by Mr Trevisan or are apparent in the extensive factual material before the Court; and (b) the remaining issue is whether the Settlement Deed on which the March Consent Order is based can be invalidated in accordance with usual contractual or equitable principles.83 96 In Civmec, Tottle J expressed the principle as:84 A consent order compromising proceedings may be set aside on grounds which would render a simple contract void or voidable, that is, on any grounds that invalidate the agreement which it expresses. I regard this as the preferable way to express the principle as, in addition to the usual contractual or equitable principles, a compromise agreement may be set aside pursuant to a legislative power, for example, where there has been misleading and deceptive conduct. 82 Connor [33]. 83 Connor [30] - [31] (reference omitted). 84 Civmec [51] citing Phillips 243 - 244. See also: Newcrest [17]. -- 36 of 100 -- [2026] WASC 317 GETHING J Page 37 97 These principles are consistent with the approach taken by the Court to the variation of a consent order, which were explained by Le Miere J in Mighty River International Ltd v Mineral Resources Ltd (No 2):85 First, the Court had power to vary an interlocutory order even if made by consent and pursuant to an agreement between the parties. Secondly, the power to vary is more readily exercisable in the context of an interlocutory order as compared with a final order. Thirdly, in the context of a consent order or judgment that is final and which gives effect to an underlying agreement, if the underlying agreement or its enforceability is not impeached then the consent order or judgment should not be set aside or varied except in an exceptional case. Fourthly, the rigidity applying to varying final orders does not apply where the consent order, based upon an agreement, is interlocutory. Fifthly, where the consent order is made in implementation of an agreement between the parties in order to finally resolve the proceeding, then adjectives such as 'exceptional' or 'rare' are not inapposite. The circumstances justifying variation should be more limited given the intended finality sought to be achieved. But where the consent order is made to resolve an interlocutory dispute, there is not such a paramountcy of finality. 98 The next issue is the nature of the inquiry required to determine whether the Court should decline to extract a consent order on the basis that agreement it gives effect to is liable to be set aside. In Civmec, Tottle J said that:86 … the general position is that the jurisdiction to set aside a consent order on a ground which would invalidate the agreement it expresses should be invoked in a new action brought for that purpose and not by an application in the original proceedings. 99 In Civmec, the defendant applied in the proceedings to set aside orders made by consent on the basis that she was suffering from a mental impairment and lacked capacity to consent to the orders. Tottle J declined to do so, holding that any challenge to the consent orders needed to be made in fresh proceedings commenced for that purpose.87 However, his Honour accepted that the issue could, in an appropriate case, be determined summarily in the existing action.88 As 85 Mighty River International Ltd v Mineral Resources Ltd (No 2) [2019] WASC 197 [61] (Le Miere J). 86 Civmec [48] citing Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 697 (Handley JA); Lewandowski v Lovell [2006] WASCA 54 [34] (Pullin JA, with whom Wheeler and Roberts-Smith JJA agreed)) (Lewandowski). 87 Civmec [48] - [50]. 88 Civmec [48] - [50]. See also: Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13, 30 (Sheller JA); Hip Foong Hong v H Neotia and Co [1918] AC 888, 894 (PC). -- 37 of 100 -- [2026] WASC 317 GETHING J Page 38 did Pullin JA in Lewandowski, but who also decided that the deed of settlement issue could not be set aside in the appeal then before the Court, but only in separate proceedings.89 100 So, for present purposes, the issue is whether the Court should determine summarily in these proceedings that the Settlement Deed should be set aside on grounds that would render a simple contract void or voidable in accordance with usual contractual or equitable principles, or pursuant to some statutory power. 101 There are two general themes which permeate summary determinations. The first is caution:90 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. 102 The second is certainty of outcome:91 It is, of course, well accepted that a Court whose jurisdiction is regularly invoked in respect of a local defendant… should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways … but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. 103 These two general themes apply equally to the issue of whether the Court should summarily determine an application in an action that a settlement agreement compromising the action should be set aside. 104 The evidence of the party seeking to set aside the settlement agreement should be treated in the same manner as a summary judgment application pursuant to RSC O 14. An application for 89 Lewandowski [32] - [33]. 90 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ) (Spencer). See also: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (judgment of the court); Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA, with whom Pullin and Buss JJA agreed). 91 Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow and Hayne JJ) (references omitted). See also: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Spencer [24] (French and Gummow JJ). -- 38 of 100 -- [2026] WASC 317 GETHING J Page 39 summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing summary judgment, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action.92 The Court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent.93 If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.94 105 The options in the present case are thus: (a) to accept, summarily, the Settlement Deed should be set aside on grounds that would render a simple contract void or voidable in accordance with usual contractual or equitable principles, or pursuant to some statutory power; or (b) to decline to set aside the Settlement Deed summarily on the basis in (a) and extract the March Consent Order as occurred in Connor and Civmec (leaving to one side the issue of RSC O 42 r 8). The outcome in (b) could be because the argument that the Settlement Deed should be set aside has an arguable basis, but cannot be determined summarily. Or the outcome in (b) could be because the argument that the Settlement Deed should be set aside has no arguable basis. 106 The conclusions in [105] are supported by the principles that apply where a party to an action seeks to enforce an agreement to compromise the action by application in the action. Again, this can only be done if the agreement can be enforced on a summary basis. This was the approach taken by Heenan J in Chesterton International (WA) Pty Ltd v Interchange Holdings Pty Ltd.95 In that action, the 92 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ); Pisano v South Metropolitan Health Service [2023] WASCA 80 [52] (judgment of the court) (Pisano); Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 [34] (Gething J) (Shada); RHG Mortgage Corporation Ltd v Schafer [2014] WASC 297 [28] (Chaney J). 93 Pisano [52]; Shada [34]; Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v LT. Market St Pty Ltd [2021] WASC 4 [23] (Strk AM) (Manton); Perpetual Trustee Co Ltd v Nikoloff [2020] WASC 389 [14] (Strk AM); Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28] (Newnes M) (Ansearch). 94 Shada [34]; Ansearch [28]; Manton [23]; Stevens v Wright [2021] WASC 36 [49] (Acting Master Strk); Bozic v Rand Mining Limited [2019] WASC 73 [20] (Acting Master Whitby). 95 Chesterton International (WA) Pty Ltd v Jackson McDonald (a firm), WASC, Heenan J, Supreme Court Lib 950056, 21 February 1995, unreported (Chesterton). -- 39 of 100 -- [2026] WASC 317 GETHING J Page 40 plaintiff, Chesterton International (WA) Pty Ltd (Chesterton), claimed an amount of commission from Interchange Holdings Pty Ltd (Interchange), the first defendant in respect of the sale of land by Interchange. Custom Credit Corporation Limited (Custom Credit), a company in liquidation, held a first mortgage over the land that was sold. Its mortgage was discharged on settlement. After settlement, by agreement between Interchange and Custom Credit, the amount claimed by Chesterton had been held in the trust account of the second defendant, a firm of lawyers. The liquidator of Custom Credit, purporting to exercise the powers of the mortgagee, offered to compromise Chesterton's claim. Chesterton accepted this offer. It then applied for judgment pursuant to the compromise. Interchange opposed the application on the grounds that such a compromise could only be enforced by commencing fresh proceedings and that, in any event, the liquidator did not have authority to bind Interchange in respect of the compromise. Heenan J concluded that: (a) the Court had the power in the proceedings to enforce an agreement compromising the action; (b) on the material before the Court, the agreement was binding on Interchange; and (c) Chesterton was entitled to judgment pursuant to the compromise. 107 In relation to the first point, his Honour relied on the wide power in SCA s 24(7), which reads: The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter, so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. -- 40 of 100 -- [2026] WASC 317 GETHING J Page 41 His Honour cited authority that this power enables the Court to summarily enforce an agreement compromising the action by an application in action.96 108 Heenan J then went on to observe:97 It is well recognised that trial by affidavit is less satisfactory than trial by oral evidence and that summary procedure should be confined within such limits as justice requires. In the present case, if there were a substantial dispute as to what were the terms of the agreement in question, the summary procedure would be inappropriate. But it has not been suggested that there is any such dispute or that any question of credibility is likely to arise. The matter to be determined is one of construction only. In my opinion, justice requires that it be determined summarily. 109 And then, after analysing the facts:98 Bearing in mind that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried… I am satisfied that this is a case in which the power should be exercised. On the material before me it is clear not only that the Court has the power in these proceedings to enforce an agreement compromising the action but also that the agreement in question is binding upon the first defendant. 110 The principles discussed so far may be summarised as follows in their application to the present case: (a) it is open to Mr Trevisan to apply to the Court to not extract the March Consent Order on the basis that the Settlement Deed it gives effect to should be set aside; (b) in order for his argument to be accepted, Mr Trevisan would need to persuade the Court to determine summarily that the Settlement Deed should be set aside; (c) the Court can set aside the Settlement Deed on the grounds that it would render a simple contract void or voidable in accordance with usual contractual or equitable principles, or pursuant to some statutory power; 96 Chesterton [4] - [5] referring to General Credits (Finance) Pty Limited v Tenton Lake Pty Ltd [1985] 2 Qd R 6, 9 - 10 (McPherson J) and Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd [1956] VLR 555, 564 (Smith J). 97 Chesterton [5]. 98 Chesterton [7] (reference omitted). -- 41 of 100 -- [2026] WASC 317 GETHING J Page 42 (d) Mr Trevisan must satisfy that Court that, with the caution that must be applied to summary determination and to a high degree of certainty, if the issue was determined at trial in the ordinary way, the Settlement Deed would be set aside; (e) in the event that he fails to do so, as in Connor, the Court would proceed to extract the March Consent Order (consistent with the outcome in Civmec where the consent order was allowed to stand); and (f) in the situation in (e), it would remain open for Mr Trevisan to commence a separate proceeding claiming that that Settlement Deed should be set aside, which, if successful, would result in the consequent orders made pursuant to the March Consent Order being set aside. 3.3 Mr Trevisan's arguments - Overview 111 Mr Trevisan asserts two bases on which he says that the Settlement Deed should be set aside, being that he entered into it as a result of the misleading and deceptive conduct or, alternatively, unconscionable conduct, of the Plaintiffs. In either case, the factual allegation turns on the failure of the Plaintiffs to disclose to him that the Claremont Land sale settled on 4 April 2025 and that the Claremont Facility was discharged in full prior to the execution of the Settlement Deed. 112 There is an issue at the outset as to whether the statutory regime in the Australian Consumer Law (ACL)99 or Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act) apply in relation to the assertions made by Mr Trevisan. Each regime contains broadly similar provisions relating to misleading and deceptive conduct100 and unconscionable conduct.101 The determination of which regime applies raises complex questions.102 For present purposes, it is sufficient if I determine the issues that arise in this Part on the basis that the regime in the ACL applies (given that they were made in the context of a settlement agreement). As will become apparent, the ultimate outcome would not have been any different had the regime in the ASIC Act applied. 99 The ACL is set out in sch 2 to the Competition and Consumer Act 2010 (Cth). 100 ACL s 18(1); ASIC Act s 12DA(1). 101 ACL ss 20, 21; ASIC Act ss 12CA, 12CB. 102 See for example: Chappell v Goldspan Investments Pty Ltd [2021] WASCA 205 [235] - [261] (Pritchard JA, with whom Buss P and Mitchell JA generally agreed) (Chappell). -- 42 of 100 -- [2026] WASC 317 GETHING J Page 43 3.4 Misleading conduct - principles 113 The prohibition on engaging in misleading and deceptive conduct in the ACL is found in ACL s 18(1), which provides that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 114 The principles by which the Court determines whether a person has engaged in conduct that is misleading or deceptive or is likely to mislead or deceive are well established. So far as is relevant to the determination of the issues in dispute in this case, those principles may be summarised as follows: (a) the question whether conduct is misleading or deceptive, or is likely to mislead or deceive, is a question of fact;103 (b) the question is an objective question that the Court must determine for itself;104 (c) there must be clear identification of the conduct that is said to be misleading or deceptive;105 (d) the characterisation of the conduct is a task that generally requires consideration of whether the impugned conduct, viewed as a whole, has a tendency to lead a person into error;106 (e) the conduct cannot be categorised as misleading and deceptive unless the representee labours under some erroneous assumption;107 (f) characterisation of conduct as misleading or deceptive, or as likely to mislead or deceive, involves consideration of a notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons;108 103 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [102] (Gummow, Hayne, Heydon and Kiefel JJ) (Campbell); Chappell [405]. 104 Campbell [25] (French CJ), [102] (Gummow, Hayne, Heydon and Kiefel JJ); Chappell [405]. 105 Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 [5] (French CJ and Kiefel J) (Miller); Swiss Re International SE v David Simpson [2018] NSWSC 233 [35] (Hammerschlag J). 106 Chappell [405]. 107 Chopsonion Pty Ltd (Controllers Apptd) v Watts Meat Machinery Pty Ltd (No 2) [2025] FCA 4 [490] (O'Sullivan J); Taco Co of Australia Inc v Tacobell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177, 200 (Deane and Fitzgerald JJ). 108 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 [39] (French CJ, Crennan, Bell and Keane JJ); Campbell [25] (French CJ); Chappell [405]. -- 43 of 100 -- [2026] WASC 317 GETHING J Page 44 (g) in undertaking the characterisation task, the Court's role is to examine the relevant course of conduct as a whole;109 (h) the characterisation task is determined by reference to the alleged conduct in light of all of the relevant surrounding facts, circumstances and context;110 and (i) where the conduct is directed to an individual, it is necessary to consider what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.111 115 There are two more specific sets of principles which are relevant to the present case. The first is where the misleading or deceptive conduct is said to arise from silence or non-disclosure. In Miller, French CJ and Kiefel J observed:112 Where silence or non-disclosure is relied upon, the pleading should identify whether it is alleged of itself to be, in the circumstances of the case, misleading or deceptive conduct or whether it is an element of conduct, including other acts or omissions, said to be misleading or deceptive. 116 The principles were summarised in more detail by Gilmour and White JJ in Addenbrooke Pty Ltd v Duncan (No 2):113 On our understanding, the principles concerning misleading or deceptive conduct by nondisclosure or silence which emerge from the authorities and which are pertinent in the present appeal may be summarised as follows: (a) conduct involving silence or nondisclosure may, in some circumstances, constitute misleading or deceptive conduct; (b) in considering whether conduct is misleading or deceptive, silence or nondisclosure is to be assessed as a circumstance like any other; (c) mere silence without more is unlikely to constitute misleading or deceptive conduct. However, remaining silent will constitute misleading or deceptive conduct if the circumstances are such as 109 Chappell [406]. 110 Campbell [102] (Gummow, Hayne, Heydon & Kiefel JJ); Miller [18]; Chappell [406]. 111 Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 [221] (Murphy JA). 112 Miller [5]. 113 Addenbrooke Pty Ltd v Duncan (No 2) [2017] FCAFC 76 [482] - [483] (references omitted) (Gilmour and White JJ). See also: Miller [19] - [21]; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, 41 (Gummow J). -- 44 of 100 -- [2026] WASC 317 GETHING J Page 45 to give rise to a reasonable expectation that, if some relevant fact does exist, it will be disclosed; (d) the existence or otherwise of such a reasonable expectation is to be determined objectively; (e) it is not possible to categorise all of the circumstances in which a reasonable expectation of disclosure may arise. Such circumstances may exist when either the law or equity imposes a duty of disclosure, when a statement conveying a half-truth only is made…, when the representor has undertaken a duty to advise, when a representation with continuing effect, although correct at the time it was made, has subsequently become incorrect, and when the representor has made an implied representation; (f) in considering whether a party engaged in commercial dealing may have a reasonable expectation that a fact, if it exists, will be disclosed, it is to be remembered that it will often be the case that one party to a commercial dealing has more knowledge about a relevant matter than the other and yet will not, in accordance with ordinary commercial expectations, be guilty of misleading or deceptive conduct in failing to make that knowledge known to the other. Ultimately, as indicated at the commencement of this reference to the principles, the determination of whether a failure to disclose a matter is misleading or deceptive requires an examination of all the circumstances. If in the circumstances, assessed objectively, a representee would have been entitled to expect or infer (have a reasonable expectation) that an undisclosed matter would be disclosed, that may well constitute misleading or deceptive conduct … 117 The second is where the representee says that they would have either entered into no transaction, or entered into a different transaction, because of the misleading or deceptive conduct. The position in these scenarios is set out by the Full Court of the Federal Court in Wyzenbeek v Australasian Marine Imports Pty Ltd (ACN 083 056 893) (in liq):114 It is always open to a person who claims under s 82 of the TPA to have suffered loss or damage by a misleading representation made in contravention of s 52 to allege that, if aware of the true position, he, she or it would have either entered into a different transaction or not entered into any transaction at all. In a 'no transaction' case the claimant asserts that he, she or it would not have entered into the transaction and, so, should be granted relief on the basis of being restored to the position that would have existed if there had not been any transaction. In a 114 Wyzenbeek v Australasian Marine Imports Pty Ltd (ACN 083 056 893) (in liq) (2019) 373 ALR 79 [89] (reasons of the court). -- 45 of 100 -- [2026] WASC 317 GETHING J Page 46 'different transaction' case, the claimant asserts that he, she or it would have acted differently, had the true position been revealed, and hypothesises on a factual scenario of what would have occurred on which basis the claimant seeks relief. Thus in a 'different transaction' case, the claimant is not seeking to be restored to his, her or its original position, but to a hypothetical one based on the postulated difference. 3.5 Misleading conduct - the Plaintiffs' position 118 It is instructive to consider the Plaintiffs' position first as this sets out the facts which are not in issue. 119 The Plaintiffs accept that as at the time of execution of the Settlement Deed:115 (a) the Plaintiffs did not disclose the sale of the Claremont Land and the sale price; (b) the Plaintiffs did not disclose the indicative sale price of the Booragoon Land, as the final sale price was not confirmed and were subject to the renegotiations of the car park licensing agreement; and (c) the Plaintiffs did not provide confirmation of the amount of Mr Trevisan's exposure as guarantor of the debts under the Claremont Facility Agreement and the Booragoon Facility Agreement after the sale of the Claremont Land and Booragoon Land. 120 However, pursuant to the Recitals to the Settlement Deed (which I have quoted at [62]), it was disclosed to Mr Trevisan that:116 (a) the Agents had initiated a sales campaign for the Claremont Land and the Booragoon Land (see Recital P); (b) the Claremont Buyer intended to purchase the Claremont Land for a price above all offers received from other parties from the sales campaign (see Recital Q); and (c) the Booragoon Buyer intended to purchase the Booragoon Land for a price above all offers received from other parties from the sales campaign (see Recital R). 115 Plaintiffs' Submissions, 23 April 2026, par 23. 116 Plaintiffs' Submissions, 23 April 2026, par 24. -- 46 of 100 -- [2026] WASC 317 GETHING J Page 47 121 As at 2 September 2025, following the receipt of the net proceeds of sale of the Booragoon Land, the additional amounts received in relation to this sale, and the surplus under the Claremont Facility, there was a balance of $1,956,469.76 owing under the Booragoon Facility. Accordingly, by entering into the Settlement Deed, Mr Trevisan was in a better position than if he had not entered into the Settlement Deed (that is, he was liable for a debt of $110,000 as opposed to $1,956,469.76).117 122 In relation to the misleading conduct claim, counsel for the Plaintiffs invites the Court to find that Mr Trevisan has not clearly or precisely identified the conduct he says was misleading or deceptive. The Plaintiffs proceed on the basis that he may be relying upon silence or non-disclosure.118 It appears from Mr Trevisan's submissions that the information he says was not disclosed to him and ought to have been disclosed was regarding the purchase prices of the Claremont Land and Booragoon Land and the magnitude of any shortfall following completion of those sales (being his exposure) (Undisclosed Information).119 123 However, the circumstances of this matter were that, as at the time of executing the Settlement Deed: (a) the Plaintiffs had not sold the Booragoon Land; (b) the Plaintiffs did not know the final amount of the shortfall under the Guarantees; and (c) the Plaintiffs knew, as was a fact, that after the sale of the Claremont Land and the Booragoon Land, there was likely to remain a shortfall owing to the Plaintiffs by Mr Trevisan, (but the precise amount of that was unknown). In these circumstances, there could be no reasonable expectation that the Plaintiffs would have (or could have) disclosed the Undisclosed Information. 124 Further, counsel notes that Mr Trevisan submits that the 'false impression' created by the Plaintiffs was that the value of his debt after 117 Plaintiffs' Submissions, 23 April 2026, pars 27, 28. 118 Plaintiffs' Submissions, 23 April 2026, par 44 citing Defendant's Submissions, 16 April 2026, par 27. 119 Defendant's Submissions, 31 May 2026, pars 16 - 18. -- 47 of 100 -- [2026] WASC 317 GETHING J Page 48 the sale of the Claremont Land and the Booragoon Land was (or would be) significantly in excess of the amount agreed under the Settlement Deed.120 If this was the impression created by the Plaintiffs' conduct, it did not lead Mr Trevisan into error. If not for the Settlement Deed, the balance of Mr Trevisan's debt after the sale of the Claremont Land and the Booragoon Land would have been over $1.9 million (which was significantly greater than the sum agreed pursuant to the Settlement Deed). 125 Counsel then submits that, it is not apparent from Mr Trevisan's submissions why he says that if he had known the sale price of the Claremont Land and the Booragoon Land and his exposure, he would not have entered into the Settlement Deed. The amount negotiated pursuant to the Settlement Deed was a substantial compromise and Mr Trevisan ended up better off. By the Settlement Deed, Mr Trevisan's liability to the Plaintiffs under the Guarantees has been reduced by a factor of almost 19 times. So it is the Plaintiffs who have compromised amounts owing to it under the Settlement Deed and, since 9 April 2025, Mr Trevisan has enjoyed the benefit of the Plaintiffs' pause in the enforcement of these proceedings. 126 Counsel for the Plaintiffs further submits that, even if Mr Trevisan could establish such a claim, by reference to Connor, he must also demonstrate a relevant remedy such as to 'render the compromise void or voidable or to entitle the party to equitable or other relief'.121 While Mr Trevisan has not particularised the type of relief he seeks, 'loss or damage' must be proven to establish an entitlement to orders to void the Settlement Deed.122 The power to make such orders is confined by two matters: first, it only arises if the claimant has suffered, or is likely to suffer, loss or damage because of the contravening conduct; and, secondly, the order must be one that the Court considers will compensate the claimant in whole or in part for the loss or damage or prevent or reduce the loss or damage suffered or likely to be suffered.123 127 The Claremont Facility and the Booragoon Facility were cross-collateralised. Accordingly, the debts under the Claremont Facility and Booragoon Facility and the sales of the Claremont Land and the Booragoon Land to recover those debts cannot be considered 120 Plaintiffs' Submissions, 23 April 2026, par 49 citing Defendant's Submissions, 16 April 2026, pars 21 - 23. 121 Connor [30]. 122 See ACL s 237(1), s 243(a); ASIC Act s 12GM. 123 ACL s 237(2); ASIC Act s 12GM(1); Harvard Nominees v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 [21] (Lee, Anastassiou and Stewart JJ). -- 48 of 100 -- [2026] WASC 317 GETHING J Page 49 separately or in isolation. At the time of executing the Settlement Deed, although the Claremont Land had been sold and the Claremont Facility materially discharged, the debt that remained owing under the Booragoon Facility was about $14,455,922.76. After the Settlement Deed was executed, the Booragoon Land was sold and the debt that remained owing to the Plaintiffs was $1,956,469.76. This significantly exceeded the settlement sum negotiated and agreed under the Settlement Deed.124 Accordingly, Mr Trevisan is better off by having executed the Settlement Deed. He has suffered no compensable loss entitling him to set aside or otherwise invalidate the Settlement Deed. 3.6 Misleading conduct - Mr Trevisan's position 128 In the Fourth Trevisan Affidavit, Mr Trevisan sets out the background to the negotiation of the Settlement Deed. In summary: (a) the period since mid-2023 has been one of severe mental and emotional stress for him;125 (b) during 2023 and 2024 there was also a breakdown in relations in his personal and family life;126 (c) his business was under severe stress being dependent upon cashflow from completed property development projects;127 (d) the Western Australian construction sector was in turmoil from 2022, projects running overtime in a manner unprecedented in his 25 years of experience;128 (e) difficulties and delays with a project in Shenton Park (which at [184] I define as the Shenton Park Project) and which led to cashflow issues for Iris Residential;129 (f) for some months following service of the proceedings in July 2024 he was unable to 'coherently brief ... solicitors in relation to filing a defence';130 (g) if the matter proceeds to trial, he proposes to adduce further evidence of his capacity during the relevant period;131 124 Plaintiffs' Submissions, 17 June 2026, pars 12 - 15. 125 Fourth Trevisan Affidavit, par 5. 126 Fourth Trevisan Affidavit, par 16. 127 Fourth Trevisan Affidavit, par 6. 128 Fourth Trevisan Affidavit, par 7. 129 Fourth Trevisan Affidavit, pars 8 - 13. 130 Fourth Trevisan Affidavit, par 21. -- 49 of 100 -- [2026] WASC 317 GETHING J Page 50 (h) over the period from September 2023 he was working actively to try and find a buyer for a project in Claremont (which at [181] I define as the Terraces Project) or a buyer for either of the Claremont Land or the Booragoon Land;132 (i) he has concerns about conflicts of interest between the mortgagees in possession of the Claremont Land and the Booragoon Land, and the ultimate related party purchasers;133 (j) he is aware of wider concerns about the business practices of Metrics, which had been the subject of regulatory investigations;134 and (k) Metrics knew that it was under regulatory surveillance whilst it was negotiating the Settlement Deed.135 129 The facts central to Mr Trevisan's position as regards misleading conduct are set out in the Second Trevisan Affidavit. Mr Trevisan sets out much of the same chronology as to the sale of the Claremont Land and the Booragoon Land which I have set out in Part 2. What is significant is his knowledge. He deposes the following in relation to the period August 2024 to February 2025:136 20. During this period, I had several conversations with George Pitsaris and Jamie Donnelly, employees of the Plaintiffs. On a number of occasions they had suggested they wanted to be paid out at the full value of the debt. I was also advised that the secured property was going to be sold to an associated party and that Metrics could sell it to whoever they wanted at $1 more than the best offer the agent in possession received. 130 He then refers to an email dated 23 October 2024 to Messrs Pitsaris, Donnelly and others, in which he said:137 'However, as by now you would be well aware, the current value of the securities underlying the debt is demonstrably well below the face value of the debt. As previously advised, at this point, outside of the Booragoon and Claremont properties, there is no material value in the 131 Fourth Trevisan Affidavit, par 37. 132 Fourth Trevisan Affidavit, pars 38 - 69. 133 Fourth Trevisan Affidavit, pars 47 - 105, 136 - 165. 134 Fourth Trevisan Affidavit, pars 106 - 121. 135 Fourth Trevisan Affidavit, pars 122 - 131. 136 Second Trevisan Affidavit, pars 20. 137 Second Trevisan Affidavit, pars 24 - 25 (emphasis in original). -- 50 of 100 -- [2026] WASC 317 GETHING J Page 51 securities. The Claremont and Booragoon properties cannot support the full debt value, which we assume was the outcome of the sales process and consistent with the JLL valuation you procured. Cameron Wong, with your permission, previously advised that the JLL mid case valuation on the Claremont land was $17m and Booragoon $14m and that JLL had advised that the achievable valuation for a mortgagee sale of the properties would be significantly lower (my emphasis). That was the path you chose to proceed with despite the advice and our warnings in relation to the Development WA buy-back right at $15.45m and the need to provide development and, in particular, construction pathways to achieve full value ... ... We have been working to find a buyer for the debt for some months, hampered by the simultaneous sales process, and have spoken to a significant number of capable interested parties. Based on a detailed review of the opportunity and risk presented by the sites, the value expectations they have advised have all been at a significant discount to the debt value. Indeed a number of parties advised that they had participated in the McGraths process but had been put off by the entirely unrealistic price expectations they were advised of. The market is extremely challenging and given the Development WA buy back option on Claremont and price of $15.45m and the actions Metrics has taken, achievable values have been undermined.' (my italics added) 131 As at October 2024, Mr Trevisan deposed that knew that Metrics would only consider a 'full value offer' on the Claremont Land:138 26. On or about 23 October 2024 Mr Perilli advised me that he had spoken to an officer of Metrics, whom I now understand was Julian Lenthall Investments Director, and been advised that Metrics expected to imminently close a dealing on the Claremont Land and Metrics would only consider a full value offer for the Claremont Land. Mr Perilli advised me that he took that to mean approximately $28 million. He told me that he had been told by Jamie Donnelly that Metrics would be interested in a sale of the Booragoon Land but Perifa wanted both. 132 Mr Trevisan summarises his understanding of the position in April 2025 as follows:139 37. At the time of signing the Settlement Agreement in April 2025 I understood that: 138 Second Trevisan Affidavit, par 26. 139 Second Trevisan Affidavit, pars 37 to 39. -- 51 of 100 -- [2026] WASC 317 GETHING J Page 52 a. the Plaintiffs had agreed to sell the Claremont Land to the Metrics Buyers, parties associated with the Plaintiffs; b. the sale price would have to be at market value for the Plaintiffs, as trustees selling trust property pursuant to a mortgagee power of sale; c. based on my own investigations of the market and conversations with the Plaintiffs market value of the Claremont Land was at that time only worth between $15,454,545.45 and $20 million excluding OST. The lower value reflecting Development WA's buy-back option price as the option had been triggered; and d. based on my own investigations of the market and conversations with the Plaintiffs, I believed that the market value of the Booragoon Land was at that time only worth between $9 million and $11 million excluding GST. 38. The quantum of my liability as guarantor claimed by the plaintiffs as set out in James Donnelly's affidavit of 17 August 2024 was $26,135,780.72 under the Claremont Facility and $13,006,434.02 under Booragoon Facility, totalling $39,142,214.74 at about the date the Cygnet West sales campaign offer period ended. This compared to my understanding of the market value of the secured properties in April 2025 as being between $24.5 million and $31 million and the valuation under a mortgagee sale the Plaintiffs advised me would be significantly less than $31 million. 39. In April 2025 1 had the impression, reinforced by the Plaintiffs advising me that they were going to sell the secured properties to an associated parties and could do so at $1 more than the highest offer they received, that if the Plaintiffs had unreasonably added costs and delayed incurring much higher fees and interest, there would still be a significant shortfall and net exposure as guarantor from the sale of the properties. 133 More detail is provided in the Fourth Trevisan Affidavit:140 132. The Settlement Agreement was signed without disclosure of material facts. I was not informed before signing the Settlement Agreement that the Claremont property had been or would be sold to Claremont Devco, a company with Andrew Lockhart as a founding director at a price more than 80% above the independent valuation Metrics, through its agents, had advised 140 Fourth Trevisan Affidavit, par 132. -- 52 of 100 -- [2026] WASC 317 GETHING J Page 53 me it had obtained from JLL Australia. I was not informed that John Norup - who had been given access to confidential Iris due diligence under an NDA arranged by and at the initiative of Metrics personnel more than 12 months before settlement would be the co-developer of the Claremont Land. 134 And:141 166. At the time of this conversation and at the time I entered into discussions that ultimately led to the Settlement Agreement on 9 April 2025, I still had no idea that the properties would sell for the values they ultimately achieved. 167. As deposed in my Second Affidavit, in May 2024 Cameron Wong of Metrics had advised me that JLL Australia had completed independent valuations of the secured properties, placing the mid-case value of the Claremont Land at $17,000,000 and the Booragoon Land at $14,000,000 on an 'as is' basis (JLL Valuations), and that the achievable value for a mortgagee sale would be lower than those figures. 168. I expected the properties to be sold to the related parties at a price slightly above the highest third party offers received - consistent with what I had been advised by George Pitsaris or Jamie Donnelly, as confirmed in the Third Donnelly Affidavit at paragraph 25( d), was the basis on which any such sale could proceed - and I expected those prices to be below the JLL Valuations because these were mortgagee in possession sales. 169. It was on that basis that I understood my potential exposure as guarantor when I entered into the Settlement Agreement. 135 In summary:142 182. I note the following sequence of dates, each of which is established by the Court record or the Plaintiffs' own affidavit material: a. By consent order made on 2 April 2025, the hearing of the summary judgment application that had been listed for 7 April 2025 was vacated and no new date was fixed. b. The Claremont Land settled on 4 April 2025 - two days after that hearing was vacated. 141 Fourth Trevisan Affidavit, pars 166 - 169. 142 Fourth Trevisan Affidavit, par 182. -- 53 of 100 -- [2026] WASC 317 GETHING J Page 54 c. I signed the Settlement Agreement on 9 April 2025 - five days after the Claremont Land had settled and seven days after the hearing had been vacated. d. I was not informed that the Claremont Land had settled before l signed the Settlement Agreement. The hearing of 7 April 2025, had it proceeded, would have been the first occasion on which the circumstances of the enforcement and sale process would have been ventilated before the Court. 136 In the Fifth Trevisan Affidavit, Mr Trevisan sets out what he would have done differently had he known that the Claremont Land had sold, and the amount it sold for, before entering into the Settlement Deed:143 4. Had I been told before I signed the Settlement Deed that the Claremont Land had settled and that the Claremont Facility had been discharged, I would not have agreed to settle my entire combined cross-collateralised exposure on 9 April 2025. 5. I subsequently learned that the Claremont Land had in fact sold for $31.000,000, exclusive of GST (a total of $34,117,994.69 at settlement, inclusive of GST and adjustments) - almost double the $17,000,000 mid-case valuation I had been given less than a year earlier. and far beyond any figure I understood could be achievable on a mortgagee sale. 6. Had l known the true sale price at the time I signed. I would not have agreed to compromise any residual liability at all. because. in my opinion then and now. that figure with the value of the Booragoon Land should have been more than sufficient to discharge any properly calculated combined liability. 7. Had I known that the Claremont Land had sold for $31,000,000. or anything close to that figure I would have pushed hard for full discharge of my guaranteed liability and would not have agreed to pay anything under the Settlement Deed without first knowing the outcome of the Booragoon sale and obtaining a full accounting of my guaranteed position under both facilities. With $31,000,000 recovered on Claremont alone, the Plaintiffs operating with reasonable care and expedition should have been able to discharge my full liability. 8. l would have taken that course because at the time I signed the Settlement Deed I would have been confident that the Booragoon Land would sell for more than enough to cover any combined justifiable residual liability. 143 Fifth Trevisan Affidavit, pars 4 - 16 (references omitted). -- 54 of 100 -- [2026] WASC 317 GETHING J Page 55 9. At the time of signing the Claremont Amendment and Restatement Deed on 22 December 2023 I believed the Claremont Land to be valued at $28,600,000 (excluding GST) and the Booragoon Land at about $19,200,000 (excluding GST) and totalling $47,800,000. A valuation well in excess of the guaranteed borrowers' facility limits. 10. Through my own investigations of the value of the secured properties and comparable properties in Perth, I was aware of unprecedented volatility in land values during 2024 particularly in relation to distressed sales. This made precise valuation estimates very difficult. 11. By 9 April 2025. and after learning of the JLL valuations and my own attempts to sell the secured properties, I was convinced. wrongly as it turned out, that the secured properties would sell for a combined value of less than $30 million. 12. I could not assess the discount to the Booragoon Land's market value under a mortgagee sale but I believed it could be substantial. 13. My estimation of the Booragoon Facility balance at the time I signed the Settlement Deed, based on reasonable inference from the facility limit and the period of default interest accrual, was between $13 million and $15 million. 14. Had I known the Claremont Land had already sold for in excess or the December 2023 valuation, I believe that I would have concluded that any residual after sale liability under my guarantee would be manageable from the sale of the Booragoon Land. and l would not have agreed to settle my entire combined exposure for $110,000. 15. Had I known the $31,000.000 Claremont sale price, I would have reassessed my view of the likely Booragoon sale outcome. The $31,000,000 price was significantly above the December 2023 valuation I had received for the Claremont Land ($28,600.000) and almost double the JLL mid-case figure ($17,000,000) I had been given in 2024. That indicated the JLL valuations I had relied upon were materially understated. On the same basis, the Booragoon Land was likely to be worth considerably more than the $14,000,000 JLL mid-case figure - closer to the December 2023 valuation of $19,200,000. That would have led me to conclude that between the two sales my combined guaranteed exposure would have been discharged in full. I would not have agreed to settle for $110,000 on that basis. -- 55 of 100 -- [2026] WASC 317 GETHING J Page 56 16. I now understand that the Booragoon Land did not settle until 18 July 2025 - more than three months atter I signed the Settlement Deed. 137 In the Fifth Trevisan Affidavit, Mr Trevisan also deposes that from about the time of the extension of the Claremont Facility and continuing through 2025 his mental health was poor:144 36. Throughout the period from about the time of the extension of the Claremont Facility, and continuing through 2025. I was experiencing significant ill health which substantially affected my capacity to engage with this litigation. I was able to function only for short periods. Through that period my disposition was to avoid the matter rather than to confront it. 37. I had been diagnosed with severe depression and had a renewing prescription for medication throughout this period. I was not taking the medication consistently. The medication reduced anxiety but did not assist clear thinking and. in my perception. made it worse. I did not have the capacity to seek assistance or engage with the proceedings in a meaningful way. 138 Mr Trevisan argues about what is a 'significant shortfall'. He says he was expecting a shortfall more in the order of $8 million, not in the order of $2 million. In essence, Mr Trevisan argues that what he lost was the opportunity to negotiate a better deal with the Plaintiffs (and other counterparties) on the basis that the shortfall was much less than he expected. 139 In the submissions filed 31 May 2026, Mr Trevisan identifies three instances of conduct which he says gives rise to a claim under either ACL s 18 or ASIC Act s 12DA:145 Non-disclosure of the Claremont settlement 16 The Claremont Land settled on 4 April 2025 - five days before the Settlement Agreement was executed - and the net proceeds discharged the Claremont Facility in full. That was a completed and certain fact on the day of execution, not a matter of uncertainty. The Plaintiffs knew the Defendant believed he faced substantial continuing combined exposure. The Plaintiffs' 'uncertainty' answer applies, if at all, only to the Booragoon price; it cannot excuse non-disclosure of a completed sale on a different property. Materially understated valuations 144 Fifth Trevisan Affidavit, pars 36 - 37. 145 Defendant's Submissions, 31 May 2026, pars 16 - 18 (references omitted). -- 56 of 100 -- [2026] WASC 317 GETHING J Page 57 17 JLL mid-case valuations of $17 million (Claremont) and $14 million (Booragoon) were communicated to the Defendant as achievable market values. The Claremont Land sold for $31 million - approximately 82% above the figure communicated. The use of materially understated valuations during settlement negotiations, while the related party sale price was known to the Plaintiffs, is a particular of misleading conduct. The Plaintiffs volunteered those valuations, together with the qualification that a mortgagee sale would achieve less, when under no obligation to disclose them; having chosen to speak, they came under a duty to correct the impression so created once they knew, through the related-party sale process, that the achievable value was materially higher. Their failure to correct it was itself misleading conduct. That disparity is independently consistent with the weak or conflicted valuation practices identified by ASIC at the relevant fund manager in REP 820: either the valuation communicated to the Defendant was accurate and was disregarded in setting the related-party sale price, or it was not an accurate representation of Metrics' internal assessment of value at the time it was communicated to the Defendant. In either case, the communication was misleading. Full-debt representations inconsistent with related-party pricing 18 The Plaintiffs represented that they would not accept offers below the full amount of the debt. Yet the Booragoon Land was sold to a related party below both its valuation and the claimed balance, and the Claremont Land was sold to an entity associated with Mr Lockhart at a price calibrated to the debt. The value of the debt is a cap on recovery, not a floor on sale pricing; the represented insistence on full-debt recovery cannot be reconciled with the related-party pricing and acquisition structure. 140 In the Defendant's Submissions filed 24 June 2026, Mr Trevisan identifies five distinct grounds on which he challenges the Settlement Deed:146 a. non-disclosure of the Claremont settlement five days before the Settlement Deed was signed; b. materially understated valuations communicated to the Defendant during negotiations, and the Plaintiffs' failure to correct the false impression thereby created once they knew the actual sale price exceeded those valuations; 146 Defendant's Submissions, 24 June 2026, par 11 (references omitted). -- 57 of 100 -- [2026] WASC 317 GETHING J Page 58 c. representations of insistence on full-debt recovery that are irreconcilable with the related-party pricing structure actually applied; d. the vacation of the 7 April 2025 hearing, which removed the only pre-execution mechanism by which these matters could have been ventilated before the Court; and e. statutory unconscionability having regard to the structural imbalance, the Defendant's vulnerability and psychological distress, the related-party acquisition structure, the rejection of third-party refinance, and the regulatory context. 141 Mr Trevisan also deals with the 'no loss' argument raised by the Plaintiffs:147 Loss and damage: answering the ‘no loss' argument 21 The Plaintiffs contend the Defendant suffered no loss because his liability under the Settlement Agreement ($110,000) was a fraction of the claimed debt. The contention is misconceived. 22 First, it assumes the claimed debt was a legitimate and enforceable liability - the very matter in dispute. If the restatement guarantee is avoided, if the mortgagee's breach reduces the enforceable shortfall to nil or a nominal sum, and if the Claremont surplus ought to have been applied before any call on the guarantee, the correct comparison is $110,000 against nil. 23 Second, the test in a no-transaction case is not a comparison of settlement terms with litigation outcomes, but whether the conduct caused entry into the transaction. The Defendant would not have entered the Settlement Agreement had he known the Claremont Land had settled five days earlier and discharged that facility, that entities associated with Mr Lockhart were acquiring both properties, and that his true Booragoon exposure was far lower than he believed. 24 Third, even if some settlement would have been entered, the Defendant would not have agreed to these terms on full disclosure; the difference between the terms agreed and those that would have been negotiated is itself loss. 25 Fourth, the release of accrued claims - for misleading conduct at the restatement stage, breach of the mortgagee's duties, and the 147 Defendant's Submissions, 31 May 2026, pars 21 - 25 (references omitted). -- 58 of 100 -- [2026] WASC 317 GETHING J Page 59 related-party acquisition - is itself loss or damage, as are the continuing no-disparagement obligations. 142 In the Defendant's Submissions filed 24 June 2026, Mr Trevisan reiterates his position and adds:148 Third, the loss is not confined to a comparison of monetary amounts. The Defendant's loss also comprises: (i) the $20,000 Initial Payment already paid; (ii) the release of substantive claims - for the restatement guarantee, for the mortgagee's duty breach, and for the related-party acquisition conduct - that would otherwise be available at trial; (iii) the continuing no-disparagement obligations; and (iv) the obligation to submit to judgment under the Consent Orders if the deferred payment is not met. Each of these is loss or damage within the meaning of the statutory provisions. 143 And:149 Fourth, the order the Defendant seeks - setting aside the Settlement Deed - is plainly within the scope of orders that 'will compensate the defendant in whole or in part for the loss or damage or prevent or reduce the loss or damage suffered or likely to be suffered.' Setting aside the Settlement Deed removes the obligation to pay the deferred settlement sum and the consent to judgment, and restores the Defendant's ability to contest the underlying claims at trial. On the Plaintiffs' own framing, the Settlement Deed is worth $1.956m in forbearance to the Defendant. That benefit is the very thing his loss prevents him retaining; setting aside the Settlement Deed does not prejudice the Plaintiffs because it restores their right to enforce the underlying claims on the merits. 144 Finally, Mr Trevisan does not invite the Court to resolve the issue of whether the Settlement Deed is binding now. Rather, he asks the Court to find that they are triable and that they ought to be determined at trial on discovery and cross-examination rather than summarily or on the papers.150 This concession works against him for the issue of whether there should be orders in terms of the March Consent Order (though it works in his favour on the question of summary judgment of the claim). 3.7 Misleading conduct - determination 145 On the one hand, it is not in issue that Mr Trevisan was not told, prior to entering into the Settlement Deed, that the sale of the 148 Defendant's Submissions, 24 June 2026, par 19 (references omitted). 149 Defendant's Submissions, 24 June 2026, par 20 (references omitted). 150 Defendant's Submissions, 24 June 2026, par 40. -- 59 of 100 -- [2026] WASC 317 GETHING J Page 60 Claremont Land had settled and of the price. His knowledge is perhaps best expressed in terms of Recitals P and Q to the Settlement Deed:151 P. The Agents - Claremont and the Agents - Booragoon initiated a sales campaign for the Claremont Property and the Booragoon Property. Q. The Claremont Buyer intends to purchase the Claremont Property for a price above all offers received from other parties from the sales campaign in paragraph P above; 146 On the other hand, Mr Trevisan was not in fact mislead. The facts which I have set out at [145] were in fact what happened. He did not labour under some erroneous assumption. The conduct of the Plaintiffs which I have described, viewed objectively and as a whole, did not have any tendency to lead a person into error. Moreover, the circumstances do not give rise to any reasonable expectation that, if the Claremont Land was sold, Mr Trevisan would be informed of this fact and of the amount. The passage that I have quoted at [129] makes it clear what Mr Trevisan knew prior to executing the Settlement Deed, which I will restate for ease of reference:152 20. During this period, I had several conversations with George Pitsaris and Jamie Donnelly, employees of the Plaintiffs. On a number of occasions they had suggested they wanted to be paid out at the full value of the debt. I was also advised that the secured property was going to be sold to an associated party and that Metrics could sell it to whoever they wanted at $1 more than the best offer the agent in possession received. This makes it clear that Mr Trevisan knew that the Claremont Land was going to be sold to an associated party for a price somewhere between $1 more than the best offer the agent in possession received and the full value of the debt, with a preference for the latter. This is what in fact occurred, so there was no error. There is no basis for the assertion that an the non-disclosure of an actual sale within those parameters was misleading or deceptive. This addresses each of the concerns set out at [139] and [140], aside from the unconscionability argument. 147 Mr Trevisan has a second issue with the misleading conduct argument. This is that I accept the Plaintiffs' argument that there is no evidence or other factual basis that Mr Trevisan suffered a loss by reason of entering into the Settlement Deed. Mr Trevisan says, had he 151 Third Donnelly Affidavit, JBD-9 (page 90). 152 Second Trevisan Affidavit, par 20. -- 60 of 100 -- [2026] WASC 317 GETHING J Page 61 known that the Claremont Land had settled for the price at which it did, he would not have entered into the Settlement Deed. On the 'no transaction' scenario, it is more likely than not that what would have happened is that the Summary Judgment Application would have been heard on 7 April 2025 as initially scheduled. Mr Trevisan accepted this during his oral submissions.153 Had that occurred, I would have come to the same conclusion as I do later in this judgment, that MCH Booragoon is entitled to summary judgment in an amount in the order of $2 million, with interest to judgment and costs on an indemnity basis. This is a far worse position than he would have been in had he proceeded with the Settlement Deed. As to the 'different transaction' scenario, to the extent that Mr Trevisan argues that he lost the opportunity to negotiate a better deal with the Plaintiffs (and other counterparties), there is no factual basis for this assertion. The assertion does not rise above mere speculation, especially given the imminence of the hearing listed on 7 April 2025 to the execution of the Settlement Deed. 148 The conclusion that there is no evidence or other factual basis that Mr Trevisan suffered a loss by reason of entering into the Settlement Deed, precludes him for making a claim under either the ACL or ASIC Act to have the Settlement Deed set aside. 149 For these reasons, I am of the view that Mr Trevisan's argument that the Settlement Deed should be set aside as a consequence of the misleading or deceptive conduct of the Plaintiffs is so clearly untenable that it cannot possibly succeed. 3.8 Unconscionable conduct - principles 150 The general prohibition on engaging in unconscionable conduct in the ACL is found in ACL s 20(1), which provides that: A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time. 151 In relation to the Settlement Deed, I do not need to consider ACL s 21, which provides that: A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable. 153 Transcript 30.6.26, page 104. -- 61 of 100 -- [2026] WASC 317 GETHING J Page 62 This is because the Settlement Deed did not concern the supply, or possible supply, of goods and services by the Plaintiffs to Mr Trevisan. 152 The principles by which the Court determines whether a person has engaged in conduct that is 'unconscionable' within the meaning of the unwritten law from time to time' are again well established. The circumstances in which the Court will intervene in equity on the basis of unconscionable conduct were summarised by Michell JA (with whom Newnes JA agreed) in Mavaddat v HSBC Bank Australia Ltd [No 2]:154 … a Court exercising equitable jurisdiction may set aside a transaction where a party makes unfair use of its superior position or bargaining power to the detriment of the other party, who suffers from some special disability or is placed in some special situation of disadvantage. For this purpose a special disability or disadvantage is one which seriously affects the ability of the innocent party to make a judgment as to his or her best interests. The first party will be held to take unfair use of the other's disability or disadvantage if it knows that the other party cannot make a judgment as to what is in his or her best interests, is aware that there is a possibility that such a situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person. The latter examples involve wilful ignorance rather than constructive knowledge. Equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. 153 In Serventy v Commonwealth Bank of Australia the Court of Appeal observed:155 Unconscionable conduct occurs if one party (A) takes advantage of an inability on the part of another party (B) to make decisions in their own best interests, in circumstances where this inability was sufficiently evident to A to render A's conduct exploitative. B's special disability is sufficiently evident to A if and only if A actually knows of it or is wilfully blind to it; constructive knowledge is not sufficient. That is because unconscionable conduct involves a 'predatory state of mind' and exploitation or victimisation, albeit that, in this context, victimisation should not be narrowly understood. Determining whether a party to a transaction has engaged in unconscionable conduct will entail 'a precise examination of the particular facts' and 'every connected circumstance' as well as 'a 154 Mavaddat v HSBC Bank Australia Ltd [No 2] [79] (Mitchell J, with whom Newnes JA agreed) (references omitted) (Mavaddat). 155 Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223 [18] - [19] (reasons of the court) (references omitted) (Serventy). -- 62 of 100 -- [2026] WASC 317 GETHING J Page 63 scrutiny of the exact relations established between the parties'. The evaluative, fact-sensitive nature of this enquiry reinforces the need for caution in the exercise of the power to grant summary judgment. That does not mean that an assertion of unconscionable conduct will be enough to preclude summary judgment. 154 In Booth v Zhou [No 2] the Court of Appeal reiterated the need for actual notice or wilful blindness for there to be unconscionable conduct, referring to the decision of the High Court in Kakavas v Crown Melbourne Ltd:156 … In Kakavas the High Court said constructive notice has no role to play in determining claims for relief against unconscionable conduct in equity and a person seeking relief against unconscionable conduct is required to prove that the alleged wrongdoer had actual knowledge (or wilful blindness) of the weakness of the other party to the impugned transaction. This requirement is imposed because equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. 3.9 Unconscionable conduct - Mr Trevisan's position 155 Mr Trevisan sets out his position succinctly in submissions:157 Unconscionable conduct 26 The Defendant relies on ss 21–22 of the ACL and ss 12CB– 12CC of the ASIC Act. Statutory unconscionability requires a substantial departure from generally accepted commercial behaviour, assessed as a whole. The following matters, taken cumulatively, raise a triable issue. (a) Structural imbalance: the Plaintiffs were mortgagees in possession controlling the sale process, the application of proceeds, and the timing of settlement, while the acquiring entities were under Metrics management and the Defendant was unrepresented from January 2025. (b) Vulnerability: the Defendant's psychological and commercial distress in the relevant period is a circumstance expressly relevant to the statutory inquiry. (c) Structural conflict of interest: the same fund manager, and Mr Lockhart as its principal, had an aligned 156 Booth v Zhou [No 2] [2024] WASCA 128 [55] (judgment of the court); Kakavas v Crown Melbourne Ltd [2013] HCA 25; [2013] 250 CLR 392 [152] - [154] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ). 157 Defendant's Submissions, 31 May 2026, pars 26 - 28 (references omitted). -- 63 of 100 -- [2026] WASC 317 GETHING J Page 64 financial incentive to extend the Facilities, to enforce rather than permit refinance, and to acquire the secured properties into a Metrics-managed fund - each fee and incentive arising under the Plaintiffs' own published fund documentation. (d) Rejection of refinance: the rejection in or about June 2024 of a bona fide third party refinance proposal backed by Harvis and PAG, directed to recovery of the then market value of the properties, is inconsistent with a mortgagee genuinely seeking prompt recovery and supports the inference of an acquisition purpose. (e) Regulatory context and the demand for silence: the Settlement Agreement was negotiated in early 2025, during the period of active ASIC surveillance of the relevant fund manager, and it required the Defendant's silence. The matters drawn into issue by these proceedings - the related-party acquisitions, the overlapping debt and equity roles, and the valuation of the loan book - were of the same character as those then under regulatory scrutiny. The Court would be entitled to infer that the imposition of a silence obligation on an unrepresented guarantor, at that time and in that context, formed part of the unconscionable course of conduct alleged. (f) Established practice: the same structure - enforcement of a Metrics lending fund's security followed by acquisition by a Metrics equity vehicle - was applied to a Melbourne project, as Metrics itself disclosed. 27 The conduct was connected to the very liability being compromised. A settlement that is the final step in a continuous course of unconscionable conduct cannot provide a valid foundation for consent orders. The sophistication argument 28 The Plaintiffs emphasise the Defendant's commercial experience. That is not an answer here. Sophistication in stable conditions is not capacity in crisis; the statutory inquiry expressly requires consideration of the party's position at the relevant time. More fundamentally, no degree of commercial experience enables a party to know facts deliberately withheld; sophistication is not a defence to non-disclosure. And if commercial sophistication were a complete answer, the statutory provisions would have no work to do in precisely the commercial setting Parliament intended them to reach. -- 64 of 100 -- [2026] WASC 317 GETHING J Page 65 3.10 Unconscionable conduct - the Plaintiffs' position 156 The same problems which counsel for the Plaintiffs identified in relation to the misleading conduct claim are said to beset any claim for statutory unconscionable conduct. The following are also said to be relevant to the Court's assessment of whether the conduct was unconscionable:158 (a) the parties were involved in an arms-length commercial transaction and a dispute the subject of this litigation; (b) Mr Trevisan had been responsible for the conduct of more than 20 development projects, and was otherwise familiar with matters of business - he cannot be said to be unsophisticated, or otherwise unable to assess the commercial effect of the Settlement Deed; (c) Mr Trevisan is legally qualified and has practical legal experience; (d) the terms of the Settlement Deed are standard terms; (e) there is nothing unduly unfair or unreasonable about those terms; (f) the terms of the Settlement Deed provided certainty to Mr Trevisan (in terms of his exposure to the Plaintiffs); and (g) the terms of the Settlement Deed were a substantial compromise on the debt which would have been owing by Mr Trevisan to the Plaintiffs if he had not entered into it, so he has suffered no detriment. 3.11 Unconscionable conduct - determination 157 For three reasons, I do not consider that there is an issue to be tried as to whether in the circumstances surrounding the entry into of the Settlement Deed, the Plaintiffs engaged in conduct that is unconscionable, within the meaning of the unwritten law from time to time. 158 The first is that there is no evidence in fact that Mr Trevisan had some disability or was in some special situation of disadvantage at all, much less one that seriously affected his ability to make a judgment as 158 Plaintiffs' Submissions, 23 April 2026, par 54 (including cross-references to the relevant evidence). -- 65 of 100 -- [2026] WASC 317 GETHING J Page 66 to his best interests. Rather, as set out at [156], he was a very experienced businessperson. He had some mental health issues, but there is no evidence to the effect that he was under some 'special disability' or disadvantage which seriously affected his ability to make a judgment as to his best interests. 159 The second is that, even if there had been such evidence, there is no evidence that the Plaintiffs (or their officers or employees) had any actual knowledge of, or were wilfully blind to, any special disability or disadvantage of Mr Trevisan. There is no evidence that any officer or employee of the Plaintiffs had a 'predatory state of mind'. 160 The third is that there is no basis for a conclusion, or even suggestion, that the conduct of the Plaintiffs surrounding the entry into the Settlement Deed was in any way exploitative. To the contrary, the Settlement Deed was in terms objectively favourable to Mr Trevisan, and involved significant compromise by the Plaintiffs. 161 In addition, the same conclusion about there being no loss as a result of any conduct of the Plaintiffs also applies to the argument that the Plaintiffs engaged in unconscionable conduct. This again means that, even if there was unconscionable conduct, Mr Trevisan has not established an arguable basis that he is entitled to any remedy as a consequence. 162 For these reasons, I am of the view that Mr Trevisan's argument that the Settlement Deed should be set aside as a consequence of the unconscionable conduct of the Plaintiffs is so clearly untenable that it cannot possibly succeed. 3.12 Setting aside the Settlement Deed - determination 163 For these reasons, Mr Trevisan has not satisfied me that, with the caution that must be applied to a summary determination and to a high degree of certainty, if the issue was determined at trial in the ordinary way, the Settlement Deed would be set aside. 164 So, had there not been an issue pursuant to RSC O 42 r 8, I would have extracted the March Consent Order. 3.13 Summary enforcement of the Settlement Deed by the Plaintiffs - determination 165 There is, however, a way in which the barrier to the March Consent Order being extracted in RSC O 42 r 8 can be surmounted. -- 66 of 100 -- [2026] WASC 317 GETHING J Page 67 166 In substance, the Plaintiffs argument is that the Settlement Deed should be enforced according to its terms, there being no arguable basis to set it aside. In other words, this is a case on all fours with Chesterton. The Plaintiffs are seeking, in the action, to summarily enforce an agreement to compromise the action. 167 For the reasons I have set out in this Part, the Plaintiffs have satisfied me, with the caution that must be applied to a summary determination and to a high degree of certainty, that if the issue was determined at trial in the ordinary way, the Settlement Deed would be enforced. Even on the factual inquiry parameters set out at [104], that is accepting the evidence of Mr Trevisan, the arguments made by Mr Trevisan as to why the Settlement Deed ought to be set aside, do not raise an issue or dispute which ought to be tried. The evidence at [146] is again significant. Rather, his arguments are so clearly untenable that they cannot possibly succeed. 168 So, rather than extracting the March Consent Order, the judgment would be on the basis of the summary enforcement of the Settlement Deed. On this basis, I am of the view that the Plaintiffs are entitled to judgment in terms that: (a) there be judgment for the first and second plaintiff against the defendant in the sum of $90,000; (b) the defendant pay the first and second plaintiff interest in the sum of $90,000 from 9 December 2025 until judgment at the rate of 6% per annum above the cash rate target published by the Reserve Bank of Australia calculated on the actual number of days elapsed on the basis of a 365 day year, and accruing and compounding daily; and (c) the defendant do pay the Plaintiffs' costs of the action on a party and party basis, to be taxed if not agreed. 4. Has MCH Booragoon established a prima face entitlement to judgment? 169 In case I am wrong about the conclusion in [168], I will proceed to determine the Summary Judgment Application. -- 67 of 100 -- [2026] WASC 317 GETHING J Page 68 170 The principles by which an application for summary judgment is to be determined were recently summarised by the Court of Appeal in Kounis in the following terms:159 Summary judgment is a procedure designed to deal with cases that are not fit for trial. The power to determine a proceeding summarily must be attended with great care - sometimes expressed in terms of 'exceptional caution'. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial, that summary judgment ought properly to be granted. The claimant carries the burden of persuading the Court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted and that judgment should be given for the claimant. If the claimant can establish a prima facie right to summary judgment, the burden then shifts to the defendant to satisfy the Court why judgment should not be given against him or her. In this respect the defendant has an evidentiary burden. However, the overall burden of persuasion remains on the party moving for summary judgment. 171 The preconditions to the exercise of the Court's power in RSC O 14 r 1(1) have been satisfied: (a) the action is one to which RSC O 14 applies; (b) the Plaintiffs have served a statement of claim on Mr Trevisan; and (c) Mr Trevisan has entered an appearance. 172 The Summary Judgment Application was not filed within 21 days after Mr Trevisan filed his memorandum of appearance as required by RSC O 14 r 1(1). However, on 16 August 2024 the parties filed a consent order, among other things, extending the time for the Plaintiffs to apply for summary judgment to 13 August 2024, being the date on which the Summary Judgment Application was initially filed. From my review of the file, I cannot see that an order in these terms was ever extracted. I will do so in the orders I make. For completeness sake, I add that, had no consent order been filed, I would readily have granted the Plaintiffs leave to have filed their Summary Judgment Application out of time.160 173 As set out at [82], the amount claimed by MCH Booragoon is $2,126,767.89 (excluding legal costs and other expenses incurred by MCH Agency from 2 September 2025). This is the amount set out in 159 Kounis [8]. 160 Applying the principles which I set out in Shada [13] - [14]. -- 68 of 100 -- [2026] WASC 317 GETHING J Page 69 the Booragoon Certificate which I have quoted at [82]. The Booragoon Certificate was prepared pursuant to clause 8.9(a) of the Trevisan Booragoon Guarantee, which provides:161 8.9 Security Trustee's certificate (a) A certificate by the Security Trustee relating to any Finance Document or as to its opinion in relation to any matter under any Finance Document is conclusive evidence against the Guarantor of the matters certified unless proven incorrect. 174 A certificate of this kind is valid and effective according to its terms. It has the legal effect of conclusively establishing the existence and amount of the indebtedness of the borrower to the lender (or guarantor to guarantee). The onus then shifts to the guarantor/borrower to demonstrate by acceptable evidence that the certificate was incorrect.162 175 In the Third Donnelly Affidavit, Mr Donnelly concludes by deposing that he has read the ASOC filed in these proceedings and dated 30 August 2024, and verifies the facts upon which the claim is made are true and correct.163 I am satisfied that Mr Donnelly has verified the facts on which MCH Booragoon's claim is based as required by RSC O 14 r 2(1). Mr Donnelly also deposes that he believes that Mr Trevisan does not have a defence to MCH Booragoon's claim, also required by RSC O 14 r 2(1).164 176 MCH Booragoon has established a prima facie right to judgment. 5. Does Mr Trevisan have an arguable defence to the claim? 5.1 Principles 177 As MCH Booragoon has satisfied all the requirements of RSC O 14 so as to give it a prima facie right to summary judgment, the burden shifts to Mr Trevisan to satisfy the Court as to why judgment should not be given against him. This is an evidentiary burden, the overall legal burden of persuasion remaining on MCH Booragoon as the applicant.165 Specifically, Mr Trevisan must satisfy the Court 'with 161 First Donnelly Affidavit, JBD-19 (page 667). 162 Dobbs (651), (654) (Rich, Dixon, Evatt and McTiernan JJ); Collopy v Commonwealth Bank of Australia [2019] WASCA 97 [55]-[59] (judgment of the court). 163 Third Donnelly Affidavit, pars 64 - 65. 164 Third Donnelly Affidavit, par 65. 165 Kounis [8]. -- 69 of 100 -- [2026] WASC 317 GETHING J Page 70 respect to the claim … that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim'.166 Mr Trevisan does not have to show a defence on the balance of probabilities, but he must at least show cause why there is an arguable defence.167 178 At [104] I set out the principles by which the Court considers the factual basis put forward by a defendant resisting an application for summary judgment. 5.2 Overview of Mr Trevisan's position 179 Mr Trevisan identifies four issues in dispute which he says ought to be tried: (a) the Plaintiffs engaged in misleading and deceptive conduct in relation to the Restatement Deed; (b) the Plaintiffs engaged in statutory unconscionable conduct in relation to the Restatement Deed; (c) the Plaintiffs breached their duty to him as mortgagees in possession in relation to the sale of the Booragoon Land and the Claremont Land; and (d) the Plaintiffs have not proven the accuracy of the Booragoon Certificate. 5.3 Mr Trevisan's evidence - background 180 In the First Trevisan Affidavit, Mr Trevisan sets out the commercial background to the claims made by the Plaintiffs. 181 In December 2016, Iris Terraces acquired land on Shenton Road in Claremont, which I have defined as the Claremont Land. Its plan was to build a mixed commercial and residential development on the Claremont Land comprising 137 apartments and approximately 760 square metres of commercial space (Terraces Project). Iris Residential was the project manager for the Terraces Project. 182 Mr Trevisan accepts that Iris Terraces entered into the Original Claremont Facility Agreement to establish the Claremont Facility, and 166 RSC O 14 r 3(1). 167 Kounis [9]; Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4] (reasons of the court). -- 70 of 100 -- [2026] WASC 317 GETHING J Page 71 that he entered into the Trevisan Claremont Guarantee.168 He deposes that at the time he entered into these agreements he anticipated that the Original Claremont Facility Agreement would be refinanced with a construction facility within its 12 month term. 183 In September 2022, Iris Terraces entered into a building contract for the construction of the Terraces Project. 184 At the same time, Iris Residential, through subsidiaries, was developing a similar project to the Terraces Project in Shenton Park (Shenton Park Project). The same builder was being used, with a contracted completion date of 26 August 2022. However, there were significant delays and issues with the Shenton Park Project. Construction costs had increased and the builder was unable to secure sufficient labour to deliver on its projects, including the Shenton Park Project. There were also quality issues. 185 Mr Trevisan accepts that in April 2023, Iris Terraces entered into the Booragoon Facility Agreement to establish the Booragoon Facility and that he entered into the Trevisan Booragoon Guarantee.169 He deposes that at the time he entered into these agreements he anticipated that the Booragoon Facility Agreement would be refinanced with a construction facility within its 12 month term. 186 Mr Trevisan describes continuing conversations with the representatives of the lenders throughout 2023 in relation to refinancing. He also sets out in some detail the efforts he went to refinance the projects. 187 In October 2023, the builder walked off the Shenton Park Project, leaving it 90% complete. 188 Mr Trevisan accepts that on or about 23 December 2023 he signed a deed enabling the cross collateralisation of the two facilities (being the agreement I have defined as the Restatement Deed) in his capacity as personal guarantor.170 On 27 December 2023, a sum of $239,250 was drawn down.171 189 Mr Trevisan’s evidence is to the effect that, by this time Iris Terraces and Iris Residential required further extensions to the 168 First Trevisan Affidavit, pars 20, 22. 169 First Trevisan Affidavit, pars 61, 65. 170 First Trevisan Affidavit, par 124. 171 First Trevisan Affidavit, par 133, ST-39 (page 865). -- 71 of 100 -- [2026] WASC 317 GETHING J Page 72 Claremont Facility and/or the Booragoon Facility in order to make payments of interest on the Claremont Facility while Iris Terraces and Iris Residential sought to refinance all projects.172 However, in early 2024, he was advised that no further extensions would be granted and that the representatives of the Plaintiffs wanted Iris Terraces and Iris Residential to arrange for the refinance and payout of the Claremont Facility and the Booragoon Facility.173 190 It was in this context that Iris Terraces defaulted on its interest payment in April 2024. 5.4 Is there an issue to be tried that the Plaintiffs engaged in misleading or deceptive conduct in relation to the Restatement Deed? Principles 191 The Restatement Deed relates to the provision of financial services, so the appropriate regime is that in ASIC Act s 12DA(1). Again, the result would be the same pursuant to ACL s 18(1). 192 At [113] to [117] I set out the principles which apply to determine when misleading or deceptive conduct occurs. Mr Trevisan's evidence and submissions 193 Mr Trevisan deposes that the primary changes to the Claremont Facility provided by the Restatement Deed from the Original Claremont Facility Agreement were:174 104. The primary changes to the Claremont Facility provided by the Claremont Amendment and Restatement Deed from the Original Claremont Facility Agreement were: i. the facility limit was increased from $22,400,000 to $23,925,000; ii. capitalisation of interest limit increased from $2,028,500 to $3,553,500; iii. the finance documents now include Amara 2018 priority deed and Iris Residential priority deed. 172 First Trevisan Affidavit, par 111. 173 First Trevisan Affidavit, par 140. 174 First Trevisan Affidavit, par 104. -- 72 of 100 -- [2026] WASC 317 GETHING J Page 73 iv. the line fee was increased from 4.5% to 6% per annum; v. the interest margin was increased from 4.5% to 6% per annum; vi. the termination date changed to 23 April 2024; vii. the addition of Amara 2018 as a new corporate guarantor; viii. a new collateral security being a second ranking general security agreement from Iris Residential over all present and after acquired property; and ix. a mortgage over the Booragoon Land. 194 As to what occurred in the immediate lead up to the execution of the Restatement Deed, he deposes:175 107. On 18 December 2023 I had a Teams conference (18 December Teams Call) with Cameron Wong and Matthew Neave of Metrics and Fleur Hudson. … 109. On the 18 December Teams Call, Cameron Wong and Matthew Neave impressed upon me the need for the Draft Restatement Documents to be executed before Christmas. 110. On the 18 December Teams Call, I advised Cameron Wong and Matt Neave that I estimated that the then balance of the Claremont Facility must be already near the New Facility Limit proposed in the Draft Restatement Documents. I advised that the facility limit would need to be increased to allow time for Iris Terraces to complete on at least one of the appointment of a builder to the Terraces Project to allow the refinancing of Claremont via additional equity or proceed with a sale of the Booragoon Land. 111. At the time of the 18 December Teams Call I had not received a statement of the Claremont Facility and did not know the exact balance but I was able to estimate that the balance would have been increased by four months of interest and line fees and signing the documents would add the new extension fee. I estimated that the balance in late December 2023 would be close to the New Facility Limit. … 175 First Trevisan Affidavit, pars 107, 109 - 111, 114 - 124. -- 73 of 100 -- [2026] WASC 317 GETHING J Page 74 114. On the 18 December Teams Call, l advised Cameron Wong and Matt Neave that maintaining the Claremont Facility within the New Facility Limit required completion of an equity raise and that would not be possible before Christmas. 115. On the 18 December Teams Call, I advised Cameron Wong and Matt Neave that signing the Draft Restatement Documents now without a further amendment would increase the balance by the new fee and higher interest margin and line fee and bring in the security of the Booragoon Land with its greater excess of value over the Booragoon Facility. 116. On the 18 December Teams Call, I advised Cameron Wong and Matt Neave that the $28,600,000 valuation at the 85.5% loan to value ratio adopted in the Draft Restatement Terms allowed for a higher facility limit of $24,453,000 providing headroom for additional interest capitalization beyond January which would be needed for the plans that l had laid out to them for how the Claremont Facility could be brought back into good standing. 117. In addition I pointed out that the Claremont Facility would have the extra security value of the Booragoon Land being provided as crossed security for the it. 118. Cameron Wong and Matt Neave advised me that it was imperative that the Draft Restatement Documents be executed immediately and that the further extension could be dealt with when investment committee next met in the new year as the investment committee had now finished for the year and would not consider new proposals. 119. I believed that there was a likelihood of approval as the valuation provided the necessary headroom to accommodate an increased facility limit within the loan to value ratio already agreed and doing so was consistent with the strategy that had been set out in discussions with Metrics as to how the Claremont Facility could be brought back into limits. 120. On the 18 December Teams Call, Cameron Wong told me that the investment committee would not meet again before the Christmas break and they needed to approve any change to the Claremont Facility. Cameron Wong told me that I needed to sign the Draft Restatement Documents now and submit for the changes in the new year. I advised that there was no possibility of an equity injection before Christmas and Iris Terraces did not have the funds to reduce the debt from its own resources. 121. Cameron Wong told me I should sign the Draft Restatement Documents and they would submit for amendments to the investment committee in the new year. -- 74 of 100 -- [2026] WASC 317 GETHING J Page 75 122. I had been dealing with Metrics three years. The process for obtaining finance with them was that I dealt with the Cameron Wong and Matt Neave, as the current relationship team, either directly or through our agent, David Grauaug. They submitted the requirements through Metrics internal processes, including dealing with the investment committee. When Cameron Wong told me we would be heard on the needed changes in January I was given the impression that, based on all of dealings, that the request would be supported and have a favourable hearing. 123. I agreed to sign the execution versions of the Draft Restatement Documents. 124. In deciding to extend my guarantee to enable the cross collateralisation of the two facilities I was concerned that the extension of liability, increased costs and the immediate exposure of the excess value J understood to exist in the Booragoon Land, would make my personal position worse. On the basis of the comfort received from Cameron Wong and Matt Neave on 22 December 2023 I signed the Claremont Amendment and Restatement Deed in my capacity as personal guarantor (Claremont Amendment and Restatement Deed). 195 However, things did not go as Mr Trevisan expected:176 137. Commencing at 8am in Perth I attended a Teams Meeting on 2 February 2024 Teams Meeting (2 February 2024 Teams Meeting). On the Teams call were myself, Fleur Hudson, David Grauaug, Cameron Wong, Matt Neave, Jamie Donnelly and George Pitsaris. … 139. The 2 February 2024 Teams Meeting was the first time I had any dealings with George Pitsaris. 140. On the 2 February 2024 Teams Meeting I tried to repeat the briefing I had provided previously to Cameron Wong and provide an update on our efforts in relation to the George Pitsaris was very aggressive and said that Metrics no longer wished to have Iris as a customer and wanted Iris to arrange for the refinance and payout of both the Claremont Facility and the Booragoon Facility. The other members of the call did not repeat the same and the focus of the call was on what we were doing to raise new capital. 196 In oral submissions, Mr Trevisan clarified what he said was the representation:177 176 First Trevisan Affidavit, pars 137, 139 - 140. -- 75 of 100 -- [2026] WASC 317 GETHING J Page 76 The representations that the further extension would receive bona fide consideration in the new year were made in circumstances where the plaintiff had the loan administration system in front of them, knew precisely what the documents would produce within days of execution and knew that the further extension I was being told would be considered was structurally necessary from the moment of signing. Whether that representation could have possibly been honoured is a question that requires the plaintiff's state of mind in December 2023 to be tested in evidence. It cannot be resolved on a summary application. The representation was not a promise of approval. It was a representation that that further extension, an extension that on the valuation figures was commercially viable within the agreed LVR framework, would receive genuine bona fide consideration by the investment committee in January. That was the representation. That was the comfort on the basis on which I signed. First affidavit, paragraph 124. What is critical is this: if by December '23 Metrics had already decided, as a subsequent event strongly suggests, that they would not genuinely consider any further extension, and that enforcement was the predetermined outcome, then the representation made on 18 December 2023 conveyed a false state of affairs. 197 There then followed this exchange:178 GETHING J: Is there any evidence that that statement - is there any evidence before the Court that MCH didn't intend, or that that statement by Mr Wong you're referring to, that wasn't their present intention? TREVISAN, MR: No, your Honour. It's my submission that that requires discovery and evidence-in-chief and cross-examination. 198 And:179 I would say that the subsequent events strongly suggest that they would not generally consider any further extension, and the enforcement was a predetermined outcome. Then, the representation made on 18 December 2023, a series of representations that created the impression, was a false state of affairs Plaintiff's position 199 Counsel for the Plaintiffs noted that Mr Trevisan places emphasis on the conversations that were had between him and representatives of the Plaintiffs leading up to the execution of the Restatement Deed. At 177 Transcript 30.6.26, pages 116 - 117. 178 Transcript 30.6.26, page 117. 179 Transcript 30.6.26, pages 118 - 119. -- 76 of 100 -- [2026] WASC 317 GETHING J Page 77 that time, the time of those communications, the existing loan was due to expire on 23 April 2024. This was also the date on which the Claremont Facility under the Restatement Deed was going to expire if it was executed. In addition to Mr Trevisan's evidence as to what was actually said between the parties, there is also some relevant contextual evidence given by Mr Trevisan in relation to those communications. Around this time, the Shenton Park Project had not been completed and the builder had walked off the project. Iris Terraces was in discussion with other builders to try and complete the project. Mr Trevisan had been struggling to raise capital and to find another builder. So there was some commercial pressure that was surrounding Mr Trevisan at the time of trying to renegotiate this facility. It was coming up to expiry, and it needed to be extended. That contextual evidence is relevant to the decisions that were made by Mr Trevisan at the time. 200 Counsel for the Plaintiffs submitted that, what was said by the representatives of the Plaintiffs was simply, in effect, that the deed needed to be signed before Christmas if it was going to be signed. If Mr Trevisan wanted some changes to that, it would be considered in the new year. There is no falsity in relation to those statements. In relation to some allegation about undue pressure, even if it is accepted that the Restatement Deed was not a good deal for the Iris Terraces and Iris Residential, Mr Trevisan's evidence is that he understood the terms of what was being proposed. And understanding those matters, because of the extraneous commercial pressure which he faced, he executed the Restatement Deed. In that context, there is no lawful basis on the evidence that Mr Trevisan has put forward that gives rise to an arguable defence in that regard. Determination 201 Nowhere does Mr Trevisan identify, let alone clearly identify, the conduct that is said to be misleading or deceptive. Nor does he articulate the error into which he says he was led by the conduct of the Plaintiffs, or the erroneous assumption he laboured under. He sets out what he believed and the impression he formed, but no more. The highest his case gets is what he says at paragraph 122 of the First Trevisan Affidavit which I have quoted at [194], which for ease of reference I repeat: I had been dealing with Metrics three years. The process for obtaining finance with them was that I dealt with the Cameron Wong and Matt Neave, as the current relationship team, either directly or through our agent, David Grauaug. They submitted the requirements through -- 77 of 100 -- [2026] WASC 317 GETHING J Page 78 Metrics internal processes, including dealing with the investment committee. When Cameron Wong told me we would be heard on the needed changes in January I was given the impression that, based on all of dealings, that the request would be supported and have a favourable hearing. 202 So, assuming that at trial Mr Trevisan gave evidence in terms of what I have quoted at [194], this would fall far short of establishing any misleading or deceptive conduct by, or on behalf of, the Plaintiffs. 203 The result is that Mr Trevisan has not established that there is an issue or question in dispute which ought to be tried as to whether the Plaintiffs engaged in misleading or deceptive conduct in relation to the Restatement Deed. 5.5 Is there an issue to be tried that the Plaintiffs engaged in statutory unconscionable conduct in relation to the Restatement Deed? Principles 204 Again, as the entry into the Restatement Deed is arguably for the supply of a financial service, I will proceed on the basis that the ASIC Act regime relating to unconscionable conduct is the applicable regime. Again, the result would be the same pursuant to ACL s 20 and s 21. 205 ASIC Act s 12CA provides: 12CA Unconscionable conduct within the meaning of the unwritten law of the States and Territories (1) A person must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. (2) This section does not apply to conduct that is prohibited by section 12CB. 206 The principles which I have set out in relation to ACL s 21 at [150] to [154] apply equally to ASIC Act s 12CA. 207 ASIC Act s 12CB(1) sets out a more specific statutory prohibition: 12CB Unconscionable conduct in connection with financial services (1) A person must not, in trade or commerce, in connection with: -- 78 of 100 -- [2026] WASC 317 GETHING J Page 79 (a) the supply or possible supply of financial services to a person; or (b) the acquisition or possible acquisition of financial services from a person; engage in conduct that is, in all the circumstances, unconscionable. 208 ASIC Act s 12CC then sets out a number of factors which the Court 'may' have regard to for the purposes of determining whether a person (the supplier) has contravened s 12CB in connection with the supply or possible supply of financial services to another. So far as is relevant to the supply of a financial product, it provides: Matters the Court may have regard to for the purposes of section 12CB (1) Without limiting the matters to which the Court may have regard for the purpose of determining whether a person (the supplier) has contravened section 12CB in connection with the supply or possible supply of financial services to a person (the service recipient), the Court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the service recipient; and (b) whether, as a result of conduct engaged in by the supplier, the service recipient was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the service recipient was able to understand any documents relating to the supply or possible supply of the financial services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the service recipient or a person acting on behalf of the service recipient by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the financial services; and (e) the amount for which, and the circumstances under which, the service recipient could have acquired identical or equivalent financial services from a person other than the supplier; and -- 79 of 100 -- [2026] WASC 317 GETHING J Page 80 (f) the extent to which the supplier's conduct towards the service recipient was consistent with the supplier's conduct in similar transactions between the supplier and other like service recipients; and (g) if the supplier is a corporation the requirements of any applicable industry code (see subsection (3)); and (h) the requirements of any other industry code (see subsection (3)), if the service recipient acted on the reasonable belief that the supplier would comply with that code; and (i) the extent to which the supplier unreasonably failed to disclose to the service recipient: (ii) any intended conduct of the supplier that might affect the interests of the service recipient; and (iii) any risks to the service recipient arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the service recipient); and (j) if there is a contract between the supplier and the service recipient for the supply of the financial services: (i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the service recipient; and (ii) the terms and conditions of the contract; and (iii) the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract; and (iv) any conduct that the supplier or the service recipient engaged in, in connection with their commercial relationship, after they entered into the contract; and (k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the service recipient for the supply of the financial services; and (l) the extent to which the supplier and the service recipient acted in good faith. -- 80 of 100 -- [2026] WASC 317 GETHING J Page 81 209 The principles which the Court will use in determining whether or not statutory unconscionable conduct arises are well established: (a) the Court must take into account each of the considerations identified in ASIC Act s 12CC if and to the extent that they apply in the circumstances;180 (b) the considerations set out in ASIC Act s 12CC are not exhaustive;181 (c) the term 'unconscionable' in ASIC Act s 12CB is not limited to the unwritten law relating to unconscionable conduct;182 (d) it is not necessary to show that a person has a pre-existing disability, vulnerability or disadvantage of which advantage was taken or that any particular person has been disadvantaged by the conduct, though if that factor is present, it will be relevant;183 (e) statutory unconscionability requires an objective evaluation of behaviour including the reasons for such behaviour and the effect or likely effect of that behaviour;184 (f) whether or not conduct is unconscionable is a decision to be made on the facts, having regard to all relevant circumstances;185 and (g) the Court is to undertake a comprehensive analysis of all underlying factual circumstances, including the relationship between the parties;186 (h) conduct which may not be unconscionable at one point in time may become so, in all the circumstances, at a later point in time;187 and 180 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1 [57] (Gordon J) (references omitted) (Stubbings). 181 Sampey v Doherty [2024] WASCA 105 [361] (judgment of the court) (Sampey); Dewar v Ollier [2020] WASCA 25 [181] (judgment of the court) (Dewar). 182 Sampey [362]. 183 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 [232] (Nettle and Gordon JJ) [295] (Edelman J) (Kobelt); Stubbings [55]; Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 281 CLR 339; (2024) 98 ALJR 1021 [97], [106] (Gordon J) (Productivity Partners HC); Sampey [362]. 184 Sampey [363]. 185 Sampey [364]; Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [114] (reasons of the court). 186 Sampey [364]; Dewar [182]. -- 81 of 100 -- [2026] WASC 317 GETHING J Page 82 (i) the knowledge, beliefs and intentions of the parties may be relevant, for example supplier used 'unfair tactics' (ASIC Act s 12CC(1)(d)) or 'acted in good faith' (ASIC Act s 12CC(1)(l)).188 210 The more nuanced point is what constitutes statutory unconscionability. The term is not a defined concept.189 As a starting point, in Stubbings Gordon J observed that the 'statutory conception of unconscionability is more broad-ranging than the equitable principles; it does something more'.190 Her Honour continued:191 Section 12CB of the ASIC Act, like equity, requires a focus on all the circumstances… The Court must take into account each of the considerations identified in s 12CC if and to the extent that they apply in the circumstances … The considerations listed in s 12CC are non- exhaustive, but they provide 'express guidance as to the norms and values that are relevant to inform the meaning of unconscionability and its practical application' … They assist in 'setting a framework for the values that lie behind the notion of conscience identified in s 12CB'… 'The assessment of whether conduct is unconscionable within the meaning of s 12CB involves the evaluation of facts by reference to the values and norms recognised by the statute, and thus, as it has been said, a normative standard of conscience which is permeated with accepted and acceptable community standards. It is by reference to those generally accepted standards and community values that each matter must be judged'…. 211 In Dewar the Court of Appeal made similar observations about the application of ASIC Act s 12CB:192 Section 12CB(2) set out a number of factors to which the Court could have regard, without limitation, for the purpose of determining whether a person had engaged in conduct that was unconscionable. As in Serventy v Commonwealth Bank of Australia [No 2], for the purpose of this case it is not necessary to explore in any detail the meaning of the word 'unconscionable' in its statutory setting. It is sufficient to note that the ordinary meaning of the word is something that is done not in good conscience and which is irreconcilable with what is right or reasonable… In the High Court Kiefel CJ, Bell and Gageler JJ have 187 PSAL Ltd v Kellas-Sharpe & Ors [2012] QSC 31 [115] (Applegarth J). 188 Australian Securities and Investments Commission v AGM Markets (No 3) (2020) 275 FCR 57 [373] (Beach J); Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC 411 [388] (Rees J). 189 Sampey [362]. 190 Stubbings [56]; Productivity Partners HC [97]. 191 Stubbings [57] (references omitted). 192 Dewar [181] referring to Serventy [23] and Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 [59] (Kiefel CJ and Bell J) [92] (Gageler JJ) (Kobelt). Other references omitted. -- 82 of 100 -- [2026] WASC 317 GETHING J Page 83 recently suggested that, in the context of s 12CB, 'unconscionable' connotes such a departure from accepted community standards in the supply of financial services to warrant characterisation of the conduct as unconscionable, in other words as offensive to conscience… 212 In Sampey, the Court of Appeal observed, in the context of the statutory unconscionability provision in ACL s 21, that the 'appropriate, modern focus is to assess whether the conduct is offensive to conscience, being so far outside societal norms of acceptable commercial behaviour'.193 The Court referred to the decision of Wigney and O'Bryan JJ in Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission that the values which inform the relevant standard of conscience include:194 … certainty in commercial transactions, honesty, the absence of trickery or sharp practice, fairness when dealing with customers, the faithful performance of bargains and promises freely made, and the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage. 213 In Kobelt Gageler J observed that 'the judgment required of a Court exercising jurisdiction in a matter arising under ASIC Act s 12CB is a heavy one'.195 His Honour then added:196 For a Court to pronounce conduct unconscionable is for the Court to denounce that conduct as offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the Court to prevail within contemporary Australian society. Those values are not entirely confined to, or entirely removed from, the values which historically informed Courts administering equity in the development of the unwritten law of unconscionable conduct. They include respect for the dignity and autonomy and equality of individuals. They include respect for the cultural diversity of communities. 193 Sampey [367]. 194 Sampey [367] ; Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54 [161(d)] (Productivity Partners FCAFC) (Wigney and O'Bryan JJ) (reference omitted). 195 Kobelt [93]. 196 Kobelt [93] (reference omitted). -- 83 of 100 -- [2026] WASC 317 GETHING J Page 84 Mr Trevisan's evidence and submissions 214 I have at [137] set out the evidence of Mr Trevisan relating to difficulties he was having with his mental health from the time of the extension of the Claremont Facility. 215 In relation to the Restatement Deed, Mr Trevisan submits:197 Restatement guarantee: an independent ground 34 The December 2023 restatement increased the margin and the line fee and cross-collateralised the Booragoon surplus equity. Representations that the investment committee would consider necessary amendments were abandoned within six weeks and no amendment was submitted. If the restatement guarantee is avoided, the cross-collateralisation falls away and the Claremont debt cannot be recovered against the Defendant as guarantor. Whether the 'all moneys' provisions preclude that election is itself a triable question requiring construction in light of the representations made. 216 In oral submissions, Mr Trevisan accepted that his choices at that time were to default or sign the Restatement Deed. He chose the latter.198 Determination 217 The same conclusions which I reached in relation to the Settlement Deed at [163] and [164] apply to the entry into the Restatement Deed. 218 There is no evidence which, in my view, raises an issue or question in dispute which ought to be tried as to whether the Plaintiffs engaged in unconscionable conduct in relation to the entry into of the Restatement Deed under either ASIC Act s 12CA or s 12CB. Mr Trevisan is a very experienced property developer. The pressure he was under was due to the commercial circumstances which he was facing. It was a matter for Mr Trevisan's commercial judgment as to whether the price for obtaining the extension was too high. Mr Trevisan does not identify any conduct by the Plaintiffs which could in any way be characterised as offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the Court to prevail within contemporary Australian society. 197 Defendant's Submissions, 31 May 2026, par 34 (references omitted). 198 Transcript 30.6.26, page 114. -- 84 of 100 -- [2026] WASC 317 GETHING J Page 85 5.6 Is there an issue to be tried that the Plaintiffs breached their duty as mortgagees in possession in relation to the sale of the Booragoon Land and the Claremont Land? Principles 219 The principles governing the conduct of a mortgagee in possession were summarised by Austin J in Carver v Westpac in the following terms:199 I have decided it is unnecessary for me to attempt any resolution of some differences of legal principle addressed in the written submissions, because of the view I take of the facts. In particular, this is not the occasion to decide whether the mortgagee's duty in exercising its power of sale is exclusively an equitable duty of good faith, or extends to a common law duty to take reasonable care. Nor is it necessary for me to decide whether, in a case where there are two borrowers but only one mortgagor, the mortgagee's duty extends to both borrowers or is confined to the mortgagor. The relevant general principles are: 1. The power of sale is given to the mortgagee for its own benefit, and is not held by the mortgagee in a fiduciary capacity. 2. Moreover, the fact that the mortgagee's sale is for a price disadvantageous to the mortgagor is itself no ground for judicial intervention… 3. Nevertheless, in exercising the power of sale, the mortgagee is subject to an equitable duty to act in good faith… The mortgagee's impropriety is sometimes described as a fraud on the power, and sometimes as a wilful or reckless disregard of the interests of the mortgagor, and sometimes as a sacrificing of the interests of the mortgagor. Whatever description is used, it is clear that the commission of actual fraud (in the sense of an intention to defraud the mortgagor, or corruption, or collusion with the purchaser) need not be shown… 4. It is unclear whether, as a matter of Australian Law, the mortgagor and the mortgagee stand in a relationship of proximity under which the mortgagee owes the mortgagor a common law duty to take reasonable care in the exercise of the 199 Carver v Westpac [2002] NSWSC 431 [12] - [13] (Austin J) (most references omitted). See also: Rowe v National Australia Bank Ltd [2019] WASCA 140 [134] - [136] (Murphy JA and Sofronoff AJA, Quinlan CJ agreeing); Reliance Capital Pty Ltd v Caratti [No 11] [2025] WASC 454 [610] - [622] (Lundberg J) (Reliance); Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 11] [2016] WASC 365 [8] (Master Sanderson); Commonwealth Bank of Australia v Hardie [2004] WASC 186 [21] (Acting Master Chapman). -- 85 of 100 -- [2026] WASC 317 GETHING J Page 86 power of sale…\ So far the Australian cases have analysed facts suggesting failure to take reasonable care by recourse to the equitable principles concerning good faith, rather than common law negligence. 5. Nor is it clear whether different practical results flow from the application of the equitable duty of good faith and the principles of common law negligence. Fisher and Lightwood's Law of Mortgage (Australian edn, 1995), p 459, states: 'There may be some practical differences between the two tests, such as in the extent of the mortgagee's duty to others besides the mortgagor, but it is doubtful whether in most cases the result would be different whichever test was applied. In Forsyth v Blundell [1973] HCA 20; (1973) 129 CLR 477 at 481 it was said that to take reasonable precautions to obtain a proper price is but part of the duty to act in good faith.' 6. The following are some of the incidents of the mortgagee's duty of good faith: (a) the onus of establishing breach of the duty lies on the mortgagor…; (b) a mortgagee fails to act in good faith if it looks after its own interests alone and sacrifices or absolutely disregards the interests of the mortgagor…; (c) action which is unfair would normally be regarded as action in bad faith…; (d) the mortgagee cannot discharge its duty by delegating the exercise of the power of sale to an agent (such as a real estate agent), since the duty requires the mortgagee not only to select a competent contractor but also to give adequate instructions, and to exercise some surveillance over the contractor or to inspect the work he is doing…; (e) where the mortgagor's case of breach of duty is based on sale at an undervalue, it is not necessary for him to prove that any particular individual would have paid a higher price for the property… -- 86 of 100 -- [2026] WASC 317 GETHING J Page 87 Mr Trevisan's evidence and submissions 220 Mr Trevisan tends to conflate the issue regarding the setting aside of the March Consent Order with the issue of whether he has an arguable defence to the action. For example:200 13. The Defendant does not rely only on his own evidence. The Third Donnelly Affidavit admits the non-disclosure of the Claremont sale and the Booragoon price before execution of the Settlement Agreement; confirms the Plaintiffs' claimed pricing right, for a third-party sale, of '$1 more than the highest third- party offer'; the existence of any bona fide arm's-length third- party offer, and the genuineness of the process by which such offers were said to have been obtained, being themselves in issue; and admits that Metrics and MCH Agency are related companies ultimately owned by the same holding company, with a conflict of interest between MCH Agency and the 'Acquiring Funds' managed by means of information barriers. These admissions do not close the triable issues; they establish them. 221 Mr Trevisan submits that the following are triable issues:201 33 A mortgagee in possession owes a duty to take reasonable care to obtain the true market value, including in the timing of sale; breach reduces or extinguishes the guarantor's liability. The following raise triable issues. (a) Related-party sale: selling secured property to an entity in which the chief executive of the mortgagee held a founding directorship is prima facie inconsistent with the arms-length duty, regardless of information barriers. (b) Absence of independent oversight on the Plaintiffs' own framework: the fund manager's published Product Disclosure Statement describes an enforcement process in which the manager itself receives and evaluates bids, and discloses no independent oversight mechanism applicable where the acquiring party is a related entity. That disclosed process is inconsistent with the arms-length sale process asserted in the Donnelly affidavits, and is relevant to whether the sales to the related acquiring entities were conducted in accordance with the mortgagee's duty to take reasonable care to obtain market value. 200 Defendant's Submissions, 31 May 2026, par 13 (references omitted). 201 Defendant's Submissions, 31 May 2026, par 33 (references omitted). -- 87 of 100 -- [2026] WASC 317 GETHING J Page 88 (c) Debt-calibrated pricing: the Claremont sale price appears to have been set at the value of the debt then owing rather than by reference to market value, so structured as to leave no surplus available before demand on the guarantee. The only surplus that emerged ($109.49) arose not from a price set above the debt but from an unanticipated GST refund. (d) Prolonged enforcement: the obstacles cited to explain delay were known and being managed from the first week of appointment, yet the shortfall is substantially attributable to default interest accrued over a 15-month enforcement period in which both sales were made to related entities. 222 Mr Trevisan also submits that, as a matter of law, a mortgagee in possession must act with reasonable expedition. The Plaintiffs have failed to do so in this case, which has the effect of increasing his liability as a guarantor. The Plaintiffs' Submissions 223 Counsel for the Plaintiffs did not take issue with the point that Mr Trevisan can, in equity, raise the issue of the manner in which the mortgagee sold the secured property. Counsel drew the attention of the Court to the decision in Reliance where Lundberg J stated:202 … equity will permit a guarantor to raise an equitable defence in part or in whole against the claim for its contractual liability under a guarantee, and that the guarantor of a secured debt is entitled to show that his 'liability to the secured creditor has been reduced (or extinguished) as a result of some shortcoming and the realisation or management of the security' by the mortgagee, that is through a flawed selling process. However, in the present case, the Plaintiff's position is that there is no evidence that the sale process was flawed. 224 Counsel for the Plaintiffs pointed to an inconsistency between the argument Mr Trevisan put in relation to the Set Aside Application - that the properties were sold for more than value and more than was expected - and the argument put in relation to the Summary Judgment Application - that the properties did not sell for enough. 225 Counsel for the Plaintiffs also submitted that Mr Trevisan's interest in these proceedings is as guarantor. It is in his interests for as much of 202 Reliance [641]. -- 88 of 100 -- [2026] WASC 317 GETHING J Page 89 the debt to be recovered as possible. The evidence is that what was obtained by that sale process was, in effect, a good amount for the properties in circumstances where the open Sales Campaign process did not achieve the prices that had been anticipated, and steps were taken to discharge as much of the debt as was possible. 226 Counsel for the Plaintiffs also referred the Court to Trevisan Claremont Guarantee, clause 4.4 which provides:203 The Guarantor: (a) waives any right to be subrogated to or otherwise have the benefit of this document or any Collateral Security until the Guaranteed Money has been satisfied in full and in the reasonable opinion of the Security Trustee any payment towards the satisfaction of the Guaranteed Money is not void, voidable or otherwise unenforceable or refundable; and (b) must not exercise a right of set-off or counterclaim which reduces or extinguishes the obligation of the borrower or the guarantor to pay the guaranteed money, and none of the Beneficiaries are not obliged to marshal in favour of the Guarantor any security or any property that any one or more of the Beneficiaries has an interest in or may be entitled to receive. The same clause is in the Trevisan Booragoon Guarantee.204 If there is a defence that could be raised as a matter of fact, it cannot be done in these proceedings. Rather, it could only be done by Mr Trevisan commencing separate proceedings. Determination 227 The uncontested evidence is that the sale price achieved for the Claremont Land and the Booragoon Land was above the highest offer which the Agents received in the Sales Campaign process. That is, the Claremont Land and the Booragoon Land were sold for above their open market value. There is no evidence that either property was undervalued when sold. Applying the principles in [219], there is no basis for a submission that the mortgagee's sale was for a price disadvantageous to Mr Trevisan: to the contrary, the sale prices actually obtained from the related purchasers were very advantageous to Mr Trevisan, reducing the residual amount of his liability as guarantor by many millions of dollars. Though, as noted, even if the sale had 203 First Donnelly Affidavit, JBD-11 (pages 340 - 341). 204 First Donnelly Affidavit, JBD-19 (pages 659 - 660). -- 89 of 100 -- [2026] WASC 317 GETHING J Page 90 been for a price disadvantageous to Mr Trevisan, that would not of itself have been a ground for judicial intervention. There is no evidence to the effect that the Plaintiffs 'sacrificed the interests of the mortgagor', and as a consequence, those of Mr Trevisan as guarantor. There is no basis for an assertion that they failed to take reasonable precautions to obtain a proper price. Even if the Plaintiffs were under a common law duty to take reasonable care in the exercise of the power of sale, there is no evidence to suggest that they failed to do so. 228 As to the timing of the sale, in Reliance Lundberg J observed that it 'is orthodox principle that a mortgagee does not owe a duty as to when to exercise its rights or powers, such as the power of sale over mortgaged property'.205 So Mr Trevisan cannot complain about the timing of the sale. 229 In any event, I accept the argument made by counsel for the Plaintiffs that the terms of both the Trevisan Claremont Guarantee and the Trevisan Booragoon Guarantee precluded Mr Trevisan from making the argument that the sale process was flawed in this action. 230 The result is that Mr Trevisan has not established that there is an issue or question in dispute about the sale process adopted by the Plaintiffs which ought to be tried in this action. 5.7 Is there an issue to be tried that the Plaintiffs have not proven the accuracy of the Booragoon Certificate? Principles 231 I have set out at [174] the principles which apply when considering a certificate of the type of the Booragoon Certificate. Mr Trevisan's evidence and submissions 232 Mr Trevisan's evidence in relation to interest rate inaccuracies is set out in the following paragraphs of the Fourth Trevisan Affidavit:206 Errors and Inconsistencies in the Plaintiffs' Interest Rate Evidence 183. I have reviewed the three affidavits of Mr James Blair Donnelly filed in these proceedings in support of the Plaintiffs' summary judgment application, being: 205 Reliance [631]. 206 Fourth Trevisan Affidavit, pars 183 - 190. -- 90 of 100 -- [2026] WASC 317 GETHING J Page 91 a. the affidavit of James Blair Donnelly affirmed on 13 August 2024 (First Donnelly Affidavit); b. the supplementary affidavit of James Blair Donnelly affirmed on 14 August 2024 and filed 19 August 2024 (Second Donnelly Affidavit); and c. the affidavit of James Blair Donnelly affirmed on 8 April 2026 (Third Donnelly Affidavit). 184. In paragraph 38 of the First Donnelly Affidavit, Mr Donnelly deposed that the Overdue Rate under each Facility Agreement was the aggregate of the Base Rate, the Margin and 4.00% per annum. In that paragraph, Mr Donnelly stated the Margin applicable to both the Claremont Facility Agreement and the Booragoon Facility Agreement as 4.50% per annum. Both figures were wrong. 185. In paragraph 41 of the First Donnelly Affidavit, Mr Donnelly also claimed interest under clause 5.l(b) of each Trevisan Guarantee at a further 4.00% per annum loading above the facility overdue rate. On the basis of those calculations, paragraphs 42(b) and 43(b) of the First Donnelly Affidavit claimed interest at 17% per annum plus the Base Rate on each of the Claremont and Booragoon debts respectively. 186. The Second Donnelly Affidavit, affirmed the following day, corrected the First Donnelly Affidavit in the following material respects: a. the Margin under the Claremont Facility Agreement is 6.00% per annum, not 4.50% per annum (paragraph 6 of the Second Donnelly Affidavit); b. the Margin under the Booragoon Facility Agreement is 3.25% per annum, not 4.50% per annum (paragraph 7 of the Second Donnelly Affidavit); and c. the interest rates stated at paragraphs 42(b) and 43(b) of the First Donnelly Affidavit were 'inadvertently incorrect' (paragraph 9 of the Second Donnelly Affidavit). The Plaintiffs stated they no longer pursue interest under clause 5.1(b) of either Trevisan Guarantee (paragraphs 10-11 of the Second Donnelly Affidavit). 187. On the Plaintiffs' revised case, the applicable interest rates are 10% per annum plus the Base Rate for the Claremont Facility (Base Rate+ 6.00% Margin+ 4.00% default loading) and 7.25% per annum plus the Base Rate for the Booragoon Facility (Base -- 91 of 100 -- [2026] WASC 317 GETHING J Page 92 Rate + 3.25% Margin+ 4.00% default loading). I do not admit those figures. The asserted Claremont margin of 6.00% depends upon the December 2023 Amendment and Restatement Deed, the validity of which is in issue in this proceeding. 188. I note that the Amended Chamber Summons filed on 14 August 2024 - filed after the Second Donnelly Affidavit- struck out the 8.50% alternative rate stated in the original Chamber Summons and substituted differentiated rates of 10% per annum plus the Base Rate for Claremont and 7.25% per annum plus the Base Rate for Booragoon (paragraphs 3(b) and 5(b) of the Amended Chamber Summons). On the Plaintiffs' revised case, those substituted rates are derived from a 6.00% Claremont margin and a 3.25% Booragoon margin, in each case combined with the 4.00% default loading. As set out above, I do not admit the 6.00% Claremont margin. 189. In the Third Donnelly Affidavit, the balance of the Booragoon debt outstanding as at 8 April 2026 is stated as $2,085,825.11, calculated from a base of $1,956,469.76 as at 2 September 2025 with interest added at 7.25% per annum plus the Base Rate. The underlying workings are contained in spreadsheets prepared by the Metrics Loan Admin Team (JBD-18 to the Third Donnelly Affidavit). l do not have access to those spreadsheets and am not in a position to independently verify the accuracy of that figure. Given the admitted errors in the interest rate calculations in the First Donnelly Affidavit, I do not accept the $2,085,825.11 figure as necessarily correct. 190. I am aware that the Plaintiffs intend to tender a certificate pursuant to clause 8.9 of the Trevisan Booragoon Guarantee to establish the amount of the debt. I rely on the matters deposed to in the preceding paragraphs as evidence that calculations produced by the Plaintiffs and their related entities concerning the amounts claimed in these proceedings have been, on the Plaintiffs' own admission, incorrect. In those circumstances, I say that any such certificate should not be accepted as conclusive evidence of the amount of indebtedness without independent scrutiny of the underlying calculations. 233 He develops his concerns in the Fifth Trevisan Affidavit:207 The certified Booragoon residual and the absence of any accounting 22. The Fourth Donnelly Affidavit attaches a certificate dated 17 June 2026 (the Dobbs Certificate) which certifies the amount payable under the Trevisan Booragoon Guarantee as at 16 June 207 Fifth Trevisan Affidavit, pars 22 - 29. -- 92 of 100 -- [2026] WASC 317 GETHING J Page 93 2026 to be $2,126,767.89, comprising a principal balance of $1,956,469.79 and accrued interest of $170.298.10. 23. I have never been provided with any account or statement. whether as guarantor or otherwise, showing how that residual figure was derived. In particular. I have not been provided with any accounting showing: (a) how the principal balance of $1,956,469.79 was arrived at following the sale of the Booragoon Land and the application of the sale proceeds; (b) how much of the amount certified comprises default- rate interest. at what rate, calculated on what balance, and over what period; and (c) what fees. costs. charges or expenses were added to the balance during the enforcement period. and on what basis. 24. From the limited material in the Donnelly affidavits I am able to reconstruct certain margin rates. but I am not able to verify the base rate applied, the fees and charges included, or the calculation of default-rate interest over the full enforcement period. I am therefore unable to verify the certified figure. 25. I also note that the default-rate interest claimed against me under the Booragoon Facility has itself changed during these proceedings: the Amended Chamber Summons records the rate claimed in the alternative as having been corrected from 7.25% per annum plus the Base Rate to 8.50% per annum plus the Base Rate, with corresponding corrections made to the principal sums claimed against me. without any explanation for those corrections being given to me. 26. I am unable to calculate the breakdown of my guaranteed exposure what it comprised when it reached its peak. immediately before the settlement on the Claremont Land or how it reduced following the sales of the two properties. 27. The Booragoon Facility had a facility limit of $12,480,000. The letter of demand dated 18 April 2024 claimed that as at that date the total amount outstanding was $12.656,105.34. That claimed figure was itself unverified and comprised principal, capitalised interest, costs and fees as asserted by the Plaintiffs at that date, not a verified principal-only figure. The Booragoon Land sold on 18 July 2025 for $13,500,000 to Booragoon Developer Pty Ltd. -- 93 of 100 -- [2026] WASC 317 GETHING J Page 94 28. If the sale proceeds of $13,500,000 were properly applied to the outstanding balance. the unadjusted shortfall - taking the claimed demand figure at face value and before accounting for any interest. costs or fees accruing between the date of demand and the date of sale - would be approximately $800,000. The certified residual of $2,126,767.89 is approximately $1,275,000 above that unadjusted figure. That excess must be accounted for by default-rate interest and enforcement costs accruing between April 2024 and July 2025, none of which has been disclosed to me or verified. Without the accounting I have sought. I cannot verify the certified figure. 29. The Booragoon Land was sold by the Plaintiffs more than a year after the default and after the sale of the Claremont Land. Throughout that period, interest accrued at the overdue rate and costs and fees were incurred. the timing and conduct of the enforcement being controlled by the Plaintiffs and the related Metrics entities. 234 His argument is succinctly put in submissions:208 8 The Plaintiffs' own evidence discloses material error in the calculation of the debt. The First Donnelly Affidavit stated the Margin under both Facility Agreements as 4.50% per annum and claimed interest at 17% per annum plus the Base Rate. The Second Donnelly Affidavit, filed the following day, revised those figures - to 6.00% (Claremont) and 3.25% (Booragoon) on the Plaintiffs' case, admitted the rates were 'inadvertently incorrect', and abandoned the additional interest claimed under clause 5.1(b) of each Guarantee. 9 The Defendant does not admit the revised figures; the asserted Claremont margin of 6.00% depends upon the December 2023 Amendment and Restatement Deed, the validity of which is in issue in this proceeding. The Amended Chamber Summons (14 August 2024) then struck out the 8.50% alternative rate stated in the original Chamber Summons and substituted differentiated rates of 10% plus the Base Rate for Claremont and 7.25% plus the Base Rate for Booragoon - a third formulation of the applicable rate within two days.6 The current Booragoon balance of $2,085,825.11 is derived from internal spreadsheets prepared by the Metrics Loan Admin Team that have not been tendered for scrutiny. 10 Where the processes that generate the debt figure have, on the Plaintiffs' own admission, produced errors, the certificate should not be accepted as conclusive without scrutiny of the underlying 208 Defendant's Submissions, 31 May 2026, pars 8 - 12 (references omitted). -- 94 of 100 -- [2026] WASC 317 GETHING J Page 95 calculations. That is a matter for trial, not summary determination. 11 Further, the quantum of the claimed shortfall is itself in issue. The claimed shortfall is approximately equal to the default-rate interest capitalised into the Booragoon balance during the 15-month enforcement period. If any part of that accrual is attributable to the Plaintiffs' failure to act with reasonable expedition as mortgagees in possession - a breach that reduces the guarantor's liability8 - it cannot be established by certificate. Nor can the certificate resolve the reasonableness of the costs deducted from sale proceeds, or the net GST position on the Claremont sale, each of which bears on the properly calculated shortfall. 12 The certificate cannot cure these matters because the statutory defences under the ASIC Act and the ACL cannot be contractually excluded, and because the certificate is conclusive (if at all) only as to the amount demanded, not as to whether that demand is enforceable in law or correctly calculated after deducting amounts for which the Plaintiffs are responsible. 235 And then in the 24 June 2026 Defendant's Submissions:209 37. The certificate is not conclusive in the absence of proof to the contrary. The Defendant's evidence establishes that proof to the contrary in three ways. a. The calculation processes that produced the certified figures have been shown by the Plaintiffs' own admissions to generate material errors. The First Donnelly Affidavit stated the Margin for both facilities as 4.50% per annum and claimed interest at 17% per annum plus the Base Rate. Both figures were abandoned the following day as 'inadvertently incorrect'. The Amended Chamber Summons itself was filed to correct the error. b. The Defendant has never been provided with any accounting of how the certified principal balance was derived following the sale of the Booragoon Land and the application of the proceeds. c. A substantial portion of the certified amount is referrable to default-rate interest accrued during a 15- month enforcement period in which both properties were sold to related-party entities connected to the Plaintiffs' manager. The Fifth Affidavit of the 209 Defendant's Submissions, 24 June 2026, par 37. -- 95 of 100 -- [2026] WASC 317 GETHING J Page 96 Defendant demonstrates that on application of the $13,500,000 Booragoon sale proceeds against the April 2024 demand figure, the unadjusted principal shortfall is approximately $800,000. The certified figure of $2,126,767.89 exceeds that by approximately $1,275,000. That excess is in substantial part a product of the prolongation of the enforcement rather than any genuine deficiency between the secured debt and the value of the secured property - the timing and conduct of enforcement being entirely within the Plaintiffs' and Metrics' control. The Plaintiffs' Submissions 236 Counsel for the Plaintiffs submitted Mr Trevisan needs to point to some error, or some argument that is raised, in order for the Court to not accept the reliability and the accuracy of the Booragoon Certificate. No such error has been identified that would justify the Court going behind the Booragoon Certificate. Determination 237 From the evidence and submissions of Mr Trevisan, I identify five concerns as to the Booragoon Certificate. 238 The first is that the initial calculations by Mr Donnelley were incorrect. However, Mr Donnelly acknowledged the error and corrected it. So this is not a basis to challenge the Booragoon Certificate. 239 The second is that, in effect, the Court should have concerns as to the accuracy of the Booragoon Certificate given these errors. However, this bald assertion is not a specific enough basis to raise an issue or question in dispute which ought to be tried. 240 The third is that the revised figures are based on the Restatement Deed being enforceable, which Mr Trevisan contests. I have concluded that Mr Trevisan had not identified an issue or question in dispute which ought to be tried in relation to the enforceability of the Restatement Deed. So this is again not a basis to challenge the Booragoon Certificate. 241 The fourth is that Mr Trevisan had not been provided with any accounting of how the certified principal balance was derived. However, this is the very purpose of a Dobbs Certificate: to obviate the need for a lender to do this unless a specific issue is raised by the -- 96 of 100 -- [2026] WASC 317 GETHING J Page 97 borrower. So this is again not a basis to challenge the Booragoon Certificate. 242 The fifth is that the interest is said to be excessive based on delaying actions by the Plaintiffs. This is again tied to the merits of the claim in relation to the conduct of the Plaintiffs as mortgagees in possession. So this is again not a basis to challenge the Booragoon Certificate. 243 The result is that Mr Trevisan has not established that there is an issue or question in dispute about the Booragoon Certificate which ought to be tried. 6. Is there 'some other reason' not to award summary judgment in relation to the claim? 244 On an application pursuant to RSC O 14, the Court may decline to award summary judgment if the defendant satisfies the Court 'that there ought for some other reason to be a trial of that claim'.210 In Miles v Bull, Megarry J said with reference to this phrase:211 If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the Court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff. This passage has been endorsed in this Court.212 245 In relation to this ground, in Mavaddat Mitchell JA observed:213 The relevant part of O 14 requires that there be some other reason for there to be a trial of the claim or part thereof. It does not merely require that there be some other reason why judgment should not be immediately entered or enforced… It would be a waste of the resources of the parties and the Court to require the trial of a claim which is certain to succeed. 246 In my view, there is no other reason why judgment should not be immediately entered and enforced. 210 RSC O 14 r 3(1). 211 Miles v Bull [1969] 1 QB 258, 265 - 266. 212 Shada [53]; Rhodes v De Castro [2022] WASC 214 at [28] (Hill J). 213 Mavaddat [103]. -- 97 of 100 -- [2026] WASC 317 GETHING J Page 98 7. What final orders are appropriate? 247 As I have mentioned, the themes of caution and certainty permeate summary determination ([101] - [102]). The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.214 It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted.215 As I have also mentioned, the overall legal burden of persuasion to establish that summary judgment is warranted remains on MCH Booragoon as the applicant for summary judgment.216 For the reasons which I have set out, MCH Booragoon discharged that burden. It has established that Mr Trevisan has no defence to its claim;217 the matters he raises by way of defence are so clearly untenable that they cannot possibly succeed.218 248 I have the high degree of certainty required as to the ultimate outcome of the action to make it appropriate to order summary judgment in favour of MCH Booragoon in relation to its claim against Mr Trevisan. That judgment will be in the amount of $2,126,767.89. MCH Booragoon is entitled to interest under at the applicable relevant contract rate until judgment. 249 MCH Booragoon also seeks an order that Mr Trevisan pays its costs pursuant to the Trevisan Booragoon Guarantee. The relevant clause creating this entitlement is clause 7.1(a), which provides:219 7.1 Reimbursement of costs and expenses The Guarantor must on demand pay: (a) the Security Trustee's costs and expenses (including legal costs and expenses on a full indemnity basis) relating to: (i) any variation or discharge of this document; and 214 Zaghloul [116]; Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24] (judgment of the court) (Sutton). 215 Nikoloff v Perpetual Trustee Company Limited [No 2] [2022] WASCA 16 [44] (judgment of the court); Zaghloul [116]; Sutton [24]. 216 Kounis [8]. 217 RSC O 14 r 1(1); Mavaddat [100]. 218 Lee v Lawfirst Pty Ltd [2023] WASCA 166 [80] (judgment of the court). 219 First Donnelly Affidavit, JBD-19 (page 665). -- 98 of 100 -- [2026] WASC 317 GETHING J Page 99 (ii) the exercise or attempted exercise or the preservation of any rights of the Security Trustee under this document; 250 Parties to litigation may also be parties to a contract which contains plain and unambiguous provisions allowing for costs to be paid on a certain basis. The Court is not bound to give effect to the contract and retains its discretion. However, the Court should ordinarily exercise its discretion in a manner consistent with the contractual provisions.220 251 In this case, I am satisfied that it is appropriate to exercise my discretion as to costs in a manner consistent with clause 7.1(a) of the Trevisan Booragoon Guarantee. 252 My preliminary view is that the order should allow for the costs to be readily the subject of the taxation process by the Court, as opposed to disputes being determined as a matter of contract law.221 This would be done by framing the order in the usual terms for an order for indemnity costs. That is, the Plaintiffs are entitled to all the costs incurred by it except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, they are completely indemnified for their costs. This has the effect that the onus would be on Mr Trevisan to satisfy the taxing officer that the costs were of an unreasonable amount or were unreasonably incurred.222 253 However, the conclusions in [247] to [252] are alternate conclusions to the primary finding that the Plaintiffs are entitled to judgment in terms of the Settlement Deed. 254 My preliminary view is that the orders which give effect to these reasons are: 1. Pursuant to the consent order filed on 16 August 2024, the time for the first plaintiff and the second plaintiff to apply for summary judgment against the defendant be extended to 13 August 2024. 220 Shada [59]; Bank of Queensland Limited v Fahy [2025] WASC 180 [62] (Gething J) (Fahy); Manton Enterprises Pty Ltd (As Trustee for GPK No 2 Trust) v Lt. Market St Pty Ltd [2021] WASC 4 (S) [15] (Strk AM); Boon v Burt [2020] WASC 64 (S) [4] (Curthoys J); Rumball v Mortimore [2000] WASC 126 [15] - [17] (Owen J). 221 Shada [60); Fahy [63]. 222 See generally: Ellis v East Metropolitan Health Service [2018] WADC 36 (S) [23] - [37] (Gething DCJ). -- 99 of 100 -- [2026] WASC 317 GETHING J Page 100 2. There be judgment for the first and second plaintiff against the Defendant in the sum of $90,000. 3. The defendant pay the first and second plaintiff interest in the sum of $90,000 from 9 December 2025 until judgment at the rate of 6% per annum above the cash rate target published by the Reserve Bank of Australia calculated on the actual number of days elapsed on the basis of a 365 day year, and accruing and compounding daily. 4. The defendant do pay the plaintiffs' costs of the action on a party and party basis, to be taxed if not agreed. 255 I will hear from counsel for the Plaintiffs and Mr Trevisan as to the final form of the orders. I direct that the Plaintiffs file an affidavit setting out the interest calculation as at the date of judgment. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CC Associate to the Hon Justice Gething 5 AUGUST 2026 -- 100 of 100 --