SINGIDA PTY LTD -v- MLMK PTY LTD [2026] WASC 357

[2026] WASC 357 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : SINGIDA PTY LTD -v- MLMK PTY LTD [No 2] [2026] WASC 357 CORAM : BYDDER J HEARD : 12 AUGUST 2026 DELIVERED : 26 AUGUST 2026 FILE NO/S : CIV 1310 of 2015 BETWEEN : SINGIDA PTY LTD First Plaintiff INLAY PTY LTD Second Plaintiff EDWIN HERBERT BAKER Third Plaintiff AND MLMK PTY LTD First Defendant LEGERDEMAIN PTY LTD Second Defendant KMLM INVESTMENTS PTY LTD Third Defendant POLARIS RESOURCES PTY LTD Fourth Defendant EXPLOSIVE MANUFACTURING SERVICES PTY LTD Fifth Defendant -- 1 of 16 -- [2026] WASC 357 Page 2 MARIANA KAKER Sixth Defendant DUNCAN LESLIE MINTO Seventh Defendant Catchwords: Taking of account by Registrar - Account taken on the basis of wilful default - Whether it is necessary to identify a founding act of wilful default for account to occur Legislation: Rules of the Supreme Court 1971 (WA) Result: Question referred by registrar to the court for determination answered Matter admitted to Commercial and Managed Cases List Category: B Representation: Counsel: First Plaintiff : D H Solomon Second Plaintiff : D H Solomon Third Plaintiff : D H Solomon First Defendant : G M Abbott Second Defendant : J R Shepherd Third Defendant : G M Abbott Fourth Defendant : J R Shepherd Fifth Defendant : G M Abbott Sixth Defendant : G M Abbott Seventh Defendant : J R Shepherd -- 2 of 16 -- [2026] WASC 357 Page 3 Solicitors: First Plaintiff : Solomon Brothers Second Plaintiff : Solomon Brothers Third Plaintiff : Solomon Brothers First Defendant : Meridian Lawyers (Perth) Second Defendant : Blackwall Legal LLP Third Defendant : Meridian Lawyers (Perth) Fourth Defendant : Blackwall Legal LLP Fifth Defendant : Meridian Lawyers (Perth) Sixth Defendant : Meridian Lawyers (Perth) Seventh Defendant : Blackwall Legal LLP Cases referred to in decision: Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne [2020] FCAFC 81; (2020) 276 FCR 172 Cheng v Lam [No 3] [2020] WASC 45 Gava v Grljusich (Unreported, WASCFC, Library No 970492, 18 September 1997) Gava v Grljusich [1999] WASC 13 In Re Ellis; Ellis v Ellis [2015] WASC 77 In re Stevens; Cooke v Stevens [1897] 1 Ch 422 In re Tebbs, deceased; Redfern v Tebbs [1976] 1 WLR 924 In re Youngs; Doggett v Revett (1885) 30 Ch D 421 Job v Job (1877) 6 Ch D 562 Mayer v Murray (1878) 8 Ch D 424 Pearson v State of Queensland (No 2) [2020] FCA 619 Re Symons (1882) 21 Ch D 757 Shine v Williams [2007] WASCA 194 State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 Stevens v Wright [2021] WASC 36 -- 3 of 16 -- [2026] WASC 357 BYDDER J Page 4 BYDDER J: Introduction 1 On 6 March 2015, the plaintiffs commenced an action against the defendants seeking declaratory relief in respect of certain partnerships, including the Explosives Manufacturing Services Australia (EMSA) Partnership, and further orders following the dissolution of those partnerships. The relief sought included each of the defendants accounting for all partnership property received or disposed of by that defendant, together with equitable compensation. 2 On 10 February 2020, the trial of the action began before Curthoys J. Before the opening address for the plaintiffs had been completed, the defendants requested an adjournment until the following day to allow for discussions between the parties. 3 On 11 February 2020, Curthoys J considered a minute of proposed orders which was broadly agreed between the parties, subject to his Honour's resolution of certain disputed aspects of the orders.1 Relevantly for present purposes, after initial disagreement the defendants consented to the accounting for which proposed orders 4.1.1 and 4.1.2 provide being 'on the footing of wilful default'.2 4 On 13 February 2020, Curthoys J made orders consistent with the minute of proposed orders, as amended in light of what was canvassed before his Honour and his Honour's rulings on 11 February 2020 (Orders). It is sufficient for present purposes to set out order 4 of the Orders: It is ordered that the affairs of the EMSA Partnership be wound up in accordance with the following orders and directions: 4.1 the first defendant, second defendant, fifth defendant, sixth defendant and seventh defendant be the accounting parties with respect to: 4.1.1 in the case of the first defendant and second defendant, identifying all assets and income of the EMSA Partnership and of the value of the interest of the first plaintiff in all of the property of the EMSA Partnership up to 1 December 2014 and all assets and income of the EMSA partnership since 1 December 2014, on the footing of wilful default; 1 ts 45 - 53. 2 ts 46 - 47. -- 4 of 16 -- [2026] WASC 357 BYDDER J Page 5 4.1.2 in the case of the fifth defendant, sixth defendant and seventh defendant, accounting for all partnership property of EMSA partnership received by each of them on or before 1 December 2014 or thereafter received by each of them, on the footing of wilful default; 4.1.3 after the completion of the accounts referred to in paragraphs 4.1.1 and 4.1.2 in the case of the first defendant and the second defendant an account of the value of the first plaintiffs interest in the EMSA partnership. 4.2 the accounting parties shall file and serve accounts verified by affidavits for the accounts referred to in paragraph 4.1 made by each of them within 90 days; 4.3 an account be taken by a Registrar of the Court with liberty to the Registrar to engage the assistance of a forensic accountant if so required; 4.4 all parties be at liberty to apply to the Registrar, when appointed, with respect to further directions and orders for the taking of the accounts, including without limitation for issue of subpoenas and cross-examination of deponents; 4.5 upon completion of the taking of the accounts under paragraph 4.1, the appointed Registrar shall report to the trial Judge on the outcome of the taking of the accounts (the Report); and 4.6 the costs of taking the accounts be reserved to the Registrar. 5 No evidence was taken at the trial before Curthoys J made the Orders. Further, no specific admission of any act of wilful default was made by any of the defendants before the Orders were made. There has been no such admission since the Orders were made either. 6 By order 8 of the Orders, the trial has been adjourned until after receipt of the Registrar's report by the trial judge (who has yet to be determined after the retirement of Curthoys J) or until further order. 7 On 24 September 2021, the learned Registrar relevantly ordered that: 1. The matter be referred back to the trial Judge in order for either of the parties to seek any clarification of, and/or determination of, the meaning and scope of Order 4 of the Orders made on 13 February 2020 (Order 4) as to the taking of account "on the footing of wilful default" other than that those words mean that -- 5 of 16 -- [2026] WASC 357 BYDDER J Page 6 an unrestricted account be taken on the basis of wilful default (being an inquiry ordered on the basis of a prima facie inference that other breaches "not yet known to the plaintiff or the Court" have occurred [see In re Tebbs; Redfern v Tebbs [1976] 1 WLR 924 at 929-930 per Slade J]) as against each of the first, second, fifth, sixth and seventh defendant; such account permitting that any of those accounting parties "may be charged with wilful default in respect of matters as to which not a word was said at the trial" [see In re Stevens; Cooke v Stevens [1987] 1 Ch 422 at 432-433 per North J]. 2. Any party seeking such clarification or determination in respect of Order 4 to file a Chambers Summons together with any written submissions and affidavits in support of that application by 22 October 2021. 8 No chamber summons was filed pursuant to the learned Registrar's orders of 24 September 2021. 9 On 19 March 2026, the learned Registrar ordered that: The question of the identification of the founding act of wilful default for the purposes of order 4 of the orders of the Honourable Justice Curthoys made 13 February 2020 ('Orders') be referred to a Judge for determination. Submissions of the parties 10 I heard the parties on the question referred by the learned Registrar on 12 August 2026. While there were some nuances to the positions they took in their written and oral submissions, the parties' positions were essentially the same. Those positions may be summarised as follows. 11 It is to be inferred from the Orders that: (a) the parties agreed that if the action went to trial and resulted in a judgment, at least one act of wilful default would have been found (although they did not necessarily agree on what that act was) and the court would have ordered accounting in respect of the EMSA Partnership wholly on the footing of wilful default; and (b) his Honour was satisfied this was so and made orders giving effect to that agreement between the parties. -- 6 of 16 -- [2026] WASC 357 BYDDER J Page 7 12 It was open to Curthoys J to make the Orders (and in particular order 4 of those Orders) on that basis. His Honour could be satisfied on the basis of the parties' agreement that an act of wilful default would be proved at trial and an order for accounting wholly on the footing of wilful default would be made. In those circumstances, it was unnecessary for a specific act of wilful default to be found or admitted. 13 The statement of claim at [80A] to [80F] specifically pleaded acts of wilful default by the defendants.3 It also pleaded other allegations of breach of fiduciary duty which could have been amended during the course of the trial to specifically plead an act of wilful default. It was also possible that the pleadings could have been amended to reflect some other allegation, as yet unpleaded, of an act of wilful default. 14 Accounting on the footing of wilful default is not confined to any pleaded, found or admitted act of default but may address any act of wilful default which emerges during that accounting. That is so even if the act of wilful default was neither pleaded nor mentioned at trial. For that reason, accounting on the footing of wilful default can proceed without a specific act of default having been found or admitted. 15 It is in the public interest for the court to be able to give effect to a settlement of this kind and to promote the appropriate settlement of legal proceedings before the court. 16 Given the substantial efforts made and expense incurred to date in giving effect to order 4 of the Orders and the nature of accounting on the footing of wilful default, the accounting for which order 4 provides should proceed without any variation of the Orders (assuming such a variation could be made). 17 Counsel for the second, fourth and seventh defendants also submitted that the authorities did not address the unique circumstances of this case, in which the parties had consented to accounts being taken wholly on the footing of wilful default in a way which avoided the need to specify an act of default. The absence of a contradictor and the submissions made to Curthoys J 18 I note that there was no contradictor before the court to the position advanced by the parties in their submissions. I also note that before Curthoys J made the Orders to give effect to the agreement of the parties, his Honour did not have the benefit of any submissions on 3 Further re-amended statement of claim filed 24 May 2019. -- 7 of 16 -- [2026] WASC 357 BYDDER J Page 8 the issues which now arise from the question referred by the learned Registrar. I make those observations without criticism of anyone, but rather as context to the analysis that follows. When an account on the basis of wilful default may be ordered 19 It has been held in a number of cases that an account on the basis of wilful default can only be ordered if at least one act of wilful default has been pleaded and either proved or admitted.4 It is enough that the pleading only comes to allege the instance of wilful default as the result of an amendment made at trial.5 20 In Gava v Grljusich (Gava),6 Kennedy J considered a matter involving a long-running dispute over the administration of a deceased estate. The plaintiffs in that matter sought an order that the account of the defendants for their administration of the estate be taken on the basis of wilful default. However, the plaintiffs had not pleaded any act of wilful default and the initial account taken in 1992 was for a common account. Kennedy J refused to make the order because in his Honour's opinion, it was7 far too late to amend the pleadings and to permit an account which had already been examined over a considerable period of time prior to the decision of the Full Court [in 19978], changed to an account on the basis of a wilful default. 21 In reaching that view, Kennedy J said:9 The well established rule is that a plaintiff, in order to be entitled to an account on the basis of wilful default must allege in his pleading, and prove, at least one example of wilful default on the part of the defendant - see Sleight v Lawson (1857) 3 K & J 292; 69 ER 1119. In Job v Job (1877) 6 Ch D 562, Sir George Jessel MR said at 564: The rule, then, at law as well as in equity, now is that an executor or administrator is in the position of a gratuitous bailee, who cannot be charged with the loss of his testator's assets 4 See for example In Re Ellis; Ellis v Ellis [2015] WASC 77 [126], [130] - [133], [141], [148] (EM Heenan J) and the authorities cited therein. See also Heydon, Leeming & Turner, Equity: Doctrines & Remedies (5th ed, 2015) [26-095]. 5 Heydon, Leeming & Turner, Equity: Doctrines & Remedies (5th ed, 2015) [26-095]; Job v Job (1877) 6 Ch D 562; Mayer v Murray (1878) 8 Ch D 424; Re Symons (1882) 21 Ch D 757. 6 Gava v Grljusich [1999] WASC 13. 7 Gava [38]. 8 Gava v Grljusich (Unreported, WASCFC, Library No 970492, 18 September 1997) (Ipp, Wallwork and Steytler JJ). 9 Gava [27] - [30]. -- 8 of 16 -- [2026] WASC 357 BYDDER J Page 9 without wilful default; and a further rule is that though he is liable in equity in case of wilful default, he cannot be charged with it unless an account is ordered against him on that footing: you cannot charge him with wilful default without making out a case; and therefore under the old practice, unless wilful default was charged in the bill, you could not so charge him in the accounts. I think, however, that under the new practice an order charging him with wilful default may be made at any time on a proper case being made. In Mayer v Murray (1878) 8 Ch D 424, Sir George Jessel, at 426-427, explained his decision in Job v Job as follows: I will here say a word upon the case of Job v Job which was recently before me and which, I understand, has led to some misapprehension. I there said that in an administration action an order charging an executor with wilful default may be made at any time during the progress of the action. Now an order charging an executor with wilful default could not be made unless he was so charged in the pleadings: therefore the charge, unless originally pleaded, must be introduced by amendment - that is, of course, by amendment at any stage of the action at which amendments may be made, that is, before judgment. The general rule is that in every case an order charging wilful default must be based upon a charge of wilful default in the pleadings. In Re Symons (1882) 21 Ch D 757, Fry J was concerned with a case in which he said there was clearly in the statement of claim a charge of wilful default against the executors in their not receiving some personal estate which they might have got in, and a charge of breach of trust in their accepting on the unpaid purchase monies of real estate which they had sold, interest at a lower rate than the purchasers were bound to pay. Importantly, in addition to the claim for administration and for ordinary accounts and enquiries, the plaintiff claimed an order that the defendants should make good to him the difference between the amount actually received by them on account of interest on the purchase-monies and the amount which should properly have been received by them for interest. The plaintiff also claimed such further or other relief as the circumstances of the case might require. Fry J, at 761, accepted that if wilful default is charged in the pleadings, and evidence of it is adduced, accounts and enquiries on that footing may be directed at any stage of the proceedings. It is clear, however, that Fry J, in his reference to "any stage of the proceedings", intended to mean at any stage of the proceedings before judgment, as he expressly adopted the passage in the judgment of Sir George Jessel in Maher v Murray quoted above. 22 Counsel for the plaintiffs and counsel for the first, third, fifth and sixth defendants relied on Gava to support the submissions I summarised above. -- 9 of 16 -- [2026] WASC 357 BYDDER J Page 10 23 I entertain considerable doubt about the correctness of the parties' submissions on whether an account on the basis of wilful default could be ordered without proof or admission of a specific act of wilful default. Their submissions face at least four difficulties. 24 First, the authorities cited by the parties on the question of when an account on the basis of wilful default may be ordered either involved or contemplated proof or admission of a specific act of wilful default. They did not involve or contemplate an 'admission' or consent orders of the kind for which the parties contend.10 25 Second, the significance of proving a specific act (or acts) of default is that it (or they) may support an inference that other breaches of trust not yet known to the plaintiff or the court may have occurred. That reflected what Slade J considered to be the appropriate test for deciding whether to order a general account on the footing of wilful default in In re Tebbs, deceased; Redfern v Tebbs (Tebbs):11 [I]s the past conduct of the trustees such as to give rise to a reasonable prima facie inference that other breaches of trust not yet known to the plaintiff or the court have occurred? 26 Unnumbered, unspecified and potentially unpleaded acts of wilful default, none of which have been specifically proved or admitted, do not, with respect, strike me as providing a particularly sound basis on which to draw such an inference. This is especially so bearing in mind the onerous nature of an order to account generally on the footing of wilful default (as to which see below at [34]). 27 Third, the Orders granted some of the relief sought by the plaintiffs in their action.12 Judgment can be given on an admission in respect of only part of a claim.13 28 While an admission may be in any form except pleadings in other proceedings,14 for judgment to be given on an admission it must be adequate and unambiguous.15 Based on the minute of proposed orders 10 The closest case to what the parties submit that I have been able to identify is In re Youngs; Doggett v Revett (1885) 30 Ch D 421, although even there the order was made on affidavit evidence. It was specifically noted by Cotton LJ at (431), with whom Lindley LJ agreed at (433), that an inquiry as to wilful default 'cannot be obtained adversely' unless a specific act of wilful default is proved. 11 In re Tebbs, deceased; Redfern v Tebbs [1976] 1 WLR 924, 930. 12 Further re-amended statement of claim filed 24 May 2019, prayer for relief [B], [K], [N], [O]. 13 Stevens v Wright [2021] WASC 36 [43] (Strk AM). 14 Civil Procedure Western Australia [30.3.3]. 15 See Rules of the Supreme Court 1971 (WA) O 30 r 3; Shine v Williams [2007] WASCA 194 [20] - [21] (Buss JA and Murray AJA); Stevens v Wright [2021] WASC 36 [44] (Strk AM). -- 10 of 16 -- [2026] WASC 357 BYDDER J Page 11 before Curthoys J, the submissions made to his Honour by the parties on 11 February 2020 and the pleadings, the defendants have made no specific admission. The statement of claim pleads acts of wilful default at [80A] to [80F] but does not do so anywhere else in that pleading. Counsel for the first, third, fifth and sixth defendants submitted before me that no admission had been or was made by his clients to any part of those paragraphs of the statement of claim beyond what had already been pleaded in the defence.16 29 It may be that, had the trial continued, an act of wilful default that had been pleaded would have been proved or admitted, but that had not occurred by the time the Orders were made. The defendants continue to be unwilling to admit any specific allegation of wilful default pleaded by the plaintiffs (an observation I make without criticism of anyone). If the trial had continued, the plaintiffs might also have amended their pleadings to allege additional or different acts of wilful default which were subsequently proved or admitted. All of this rises no higher than being a possibility. 30 Fourth, if accounting on the footing of wilful default is ordered by the court based on at least one proved or admitted act of wilful default, when the accounts are taken the occurrence of at least that act will be uncontroversial. The accounting can proceed on the basis that, at the very least, the party in wilful default must account for that default. Other acts of wilful default may be proved or admitted in the course of taking the accounts.17 31 If there is no proved or admitted act of wilful default before the accounting is ordered, every act of wilful default alleged in the context of taking the accounts may be controversial. Given the absence of any proved or admitted act of wilful default, it may be that ultimately the learned Registrar is not satisfied that there has been any act of wilful default. Yet a finding that there has been no act of wilful default would be inconsistent with the basis on which accounting on the footing of wilful default was ordered, even on the parties' submissions. This may give rise to real difficulty in taking the accounts. That difficulty may extend to the appropriate process for taking the accounts. 16 See the re-amended substituted amended defence and counterclaim filed 24 January 2017 [67A] - [67D]. Paragraphs [80A] to [80F] of the statement of claim were inserted by the amendments made in the re- amended statement of claim filed 22 November 2016. 17 See in this regard In re Stevens; Cooke v Stevens [1897] 1 Ch 422, 432 - 433 (North J), from which I quote below. -- 11 of 16 -- [2026] WASC 357 BYDDER J Page 12 32 I acknowledge the public interest in the appropriate settlement of legal proceedings. I also acknowledge that proof or admission of one act of wilful default may be sufficient to justify an order that accounts be taken wholly on the basis of wilful default, which is not confined to the act proved or admitted (see below at [34]). The parties were agreed before me on what should be inferred from the Orders. The defendants consented to order 4 of the Orders and did so with the benefit of legal advice. The submissions of the parties are arguable. Further and as I have said, I have not had the benefit of submissions from a contradictor in this matter. 33 Nevertheless, even if the court has power to do so, in my respectful opinion it will ordinarily be undesirable at best for the court to order that accounts be taken on the footing of wilful default unless the court has found, or it has been admitted, that there was at least one specific act of wilful default. I do not consider it appropriate to go further than expressing that opinion, given the absence of a contradictor and: (a) the nature of an account on the footing of wilful default; (b) the status of order 4 of the Orders; and (c) case management considerations as they apply to this case. The nature of an account on the footing of wilful default 34 As the learned Registrar recorded in her orders of 24 September 2021, a general account on the footing of wilful default is in the nature of a roving inquiry.18 As North J said in In re Stevens; Cooke v Stevens:19 Although only one or two cases of wilful default are proved at the trial, a judgment on the footing of wilful default applies to all the acts of the executors on winding up the estate, and in taking the accounts they may be charged with wilful default in respect of matters as to which not a word was said at the trial. It is therefore an order of a very wide character, and differs entirely from a special enquiry with respect to some particular matter. I can quite understand that, if one or two cases of wilful default were put forward, the Court might say that they were not sufficient to justify a general account based upon wilful default, but that they were sufficient to justify the directing of special enquiries with 18 Tebbs (929) - (930) (Slade J). 19 In re Stevens; Cooke v Stevens [1897] 1 Ch 422, 432 - 433 (emphasis added). The scope of the account on the footing of wilful default will of course depend on the terms of the order for the account to be taken on that footing. See In Re Ellis; Ellis v Ellis [2015] WASC 77 [127], [140] (EM Heenan J). -- 12 of 16 -- [2026] WASC 357 BYDDER J Page 13 regard to the particular transactions in question; and then, if the Court directed enquiries large enough to bring out all the facts, I take it there might be a judgment upon the footing of wilful default as a result of those particular inquiries. But that is a totally different thing from a judgement based upon wilful default proved at the trial and an account directed generally on that footing. 35 In the Full Court's decision in Gava v Grljusich20 (Gava FC) Ipp J (with whom Wallwork and Steytler JJ agreed) said21 The procedure involved in the taking of accounts is well-known and is described in detail in Atkin's Court Forms vol 1 at 612 to 613. Where a Registrar (or Master) is appointed to take accounts she will hear evidence generally, and, in particular, will allow cross-examination of witnesses in regard to disputed items. When the evidence is concluded, and submissions have been completed, she will make decisions as to the merits of the items claimed to form part of the accounts and come to a conclusion as to the overall amount found to be owing. 36 Given the nature of an account on the footing of wilful default, the lack of a specific act of wilful default (whether proved or admitted) does not necessarily prevent that account being taken. The lack of a specific act may be unhelpful to the extent that it makes it more difficult for the learned Registrar to ensure that her report is consistent with the Orders, but in my respectful opinion it may not be an insuperable obstacle. However, as I have already indicated, it may further complicate a potentially very wide-ranging inquiry. 37 Nevertheless, in order for the learned Registrar to take the accounts there must be a clear process for allegations to be made of acts of wilful default, for responses to be given to those allegations, for the taking of evidence and for the issues arising from those allegations and responses to be resolved (in circumstances where the burden of proof lies on the plaintiffs to prove an act of wilful default, as none has been admitted). One possible means of doing that is for the parties to file and serve statements of issues, facts and contentions which make allegations of acts of wilful default or respond to them (as the case may be). No doubt there are other processes which could be adopted.22 The process of taking evidence will also need to be determined. It will be necessary for the learned Registrar to hear submissions from the parties on these matters. 20 Gava v Grljusich (Unreported, WASCFC, Library No 970492, 18 September 1997, Ipp, Wallwork and Steytler JJ). 21 Gava FC (3) - (4). 22 See for example Cheng v Lam [No 3] [2020] WASC 45 [76] - [85] (Registrar Whitbread), which involved taking accounts in a common account. -- 13 of 16 -- [2026] WASC 357 BYDDER J Page 14 38 The appropriate process is primarily a matter for the learned Registrar in taking the accounts. However, it is also appropriate for this matter to be placed in a Judge's Commercial and Managed Cases List so that issues can be referred to that Judge as needed to hear the parties and make orders facilitating the taking of accounts. In light of that, I will admit this matter to my Commercial and Managed Cases List. The status of order 4 of the Orders 39 The Orders, including order 4, are orders of a State Supreme Court. They are valid until set aside, even if they were made in excess of jurisdiction.23 40 It may be that the orders could be varied in some way,24 but that is not a matter on which I express any concluded view. I need do no more at this time than acknowledge the possibility that the orders could be varied, given the case management considerations to which I now turn. Case management considerations 41 This matter was commenced in 2015. The accounting exercise required by order 4 of the Orders has been in train since 2020. The parties submit that considerable effort and expense have been spent on that accounting exercise. I accept that submission, which is reflected in the court file for the matter. 42 Without an admission of a specific act of default by the relevant defendants, determining a founding act of wilful default for the purposes of order 4 of the Orders would require a Judge of this court to receive evidence and submissions on that issue from the parties and then determine whether a specific act of wilful default had been proved. Given the ways in which an act of wilful default might ultimately be proved or admitted, that may require the resumption of the trial that was adjourned on 11 February 2020. 43 If a specific act were found to be proved and the court was otherwise satisfied that order 4 of the Orders remains appropriate, the 23 State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). See also as to interlocutory orders Pearson v State of Queensland (No 2) [2020] FCA 619 [264] (Murphy J). 24 See in this regard Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 [26] - [27], [30] - [33] (Giles JA, with whom Sheller and Beazley JJA agreed); In Re Ellis; Ellis v Ellis [2015] WASC 77 [140] (EM Heenan J); Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne [2020] FCAFC 81; (2020) 276 FCR 172 [18] (Flick J, with whom Anastasiou J relevantly agreed at [83]), [55] - [56] (Bromberg J), [85] (Anastasiou J). -- 14 of 16 -- [2026] WASC 357 BYDDER J Page 15 accounting exercise that has been in train for six years would resume after a delay created by the hearing before the Judge (assuming that it had been suspended pending the outcome of the hearing). If no specific act were found to be proved, the basis on which the accounting exercise has been undertaken would at least be undermined, with the wasted time and costs that implies. 44 Unless it is essential to the fair and just determination of the issues bona fide in contention between the parties, such a course should not be taken.25 In my respectful opinion, it is not essential to take that course because: (a) the parties agree that there has been at least one act of default and that, as a consequence, judgment after a trial would have included an order for accounting wholly on a footing of wilful default; (b) a Judge of this court made the Orders to give effect to that agreement and should be taken to have been of the opinion that it was open to the court to make the Orders; (c) it is at least arguable that it was open to the court to make the Orders, which are valid until set aside, and none of the parties seek to disturb the Orders; (d) in consenting to order 4 of the Orders the defendants affected by that order have submitted to its onerous consequences and indeed have done so with the benefit of legal advice; (e) accounting on the footing of wilful default can continue without the court first identifying a specific act of wilful default and will allow for any allegations of wilful default to be made and tested before the learned Registrar under an appropriate process, who will make her report to the Judge allocated to this matter; and (f) the Judge will be able to accept the learned Registrar's report in whole or in part, or reject it, and make further orders after hearing from the parties as required in order to case manage the matter to its resolution. 45 None of this is to detract in any way from what I have said above about the process which will need to be determined and followed. This will require attention by the parties to the difficulties arising from the 25 Rules of the Supreme Court 1971 (WA) O 1 r 4A and r 4B. -- 15 of 16 -- [2026] WASC 357 BYDDER J Page 16 taking of accounts on the footing of wilful default without any act of wilful default having been proved or admitted. It remains a possibility that the plaintiffs will fail to prove any act of wilful default, with the difficulties that creates. 46 These matters may require a directions hearing before me in conjunction with the learned Registrar, at a convenient time after this matter next comes before the learned Registrar. That remains to be seen. Answer to the question referred by the learned Registrar 47 For these reasons, it is neither necessary nor appropriate in the circumstances of this case at this time for a founding act of wilful default to be identified for the purposes of order 4 of the Orders. 48 However, I will order that this matter be entered into my Commercial and Managed Cases List. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. ST Associate to the Hon Justice Bydder 26 AUGUST 2026 -- 16 of 16 --