HEARD : 4 APRIL 2024


FILE NO/S : ARB 2 of 2024


First Plaintiff

Second Plaintiff




Arbitration – Application to enforce awards pursuant to s 35 of the Commercial Arbitration Act 2012 (WA) – Applications in accordance with the requirements of the Commercial Arbitration Act 2012 (WA) and Supreme Court (Arbitration) Rules 2016 (WA) – No basis identified for enforcement to be refused – Legislative policy of minimal curial intervention – No residual discretion to refuse to enforce – Orders made for enforcement


Commercial Arbitration Act 1985 (WA), s 33 (repealed)
Commercial Arbitration Act 2012 (WA), s 1C, s 5, s 35 and s 36
International Arbitration Act 1974 (Cth), s 8
Rules of the Supreme Court 1971 (WA), O 1 r 4A and O 1 r 4B
Supreme Court (Arbitration) Rules 2016 (WA), r 24


Orders made to enforce interim award and final award

Category: B



First Plaintiff : H M O’Sullivan
Second Plaintiff : H M O’Sullivan
Defendant : J Jacobson


First Plaintiff : McCabes
Second Plaintiff : McCabes
Defendant : Jacobson and Associates

Case(s) referred to in decision(s):

Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163
CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1
Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110; 396 ALR 1
Ivankovic v Western Australian Planning Commission [2020] WASC 40
Spaseski v Mladenovski [2019] WASC 65
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533
The State of Western Australia v Mineralogy Pty Ltd [2020] WASC 58
Venetian Nominees Pty Ltd v Weatherford Australia Pty Ltd [2021] WASC 137

Table of Contents
A. Introduction
B. Evidentiary material
C. Factual background
D. The positions of the parties
E. Disposition
F. Conclusion and orders


A. Introduction

  1. On 14 February 2024, the plaintiffs applied by originating summons for orders pursuant to s 35(1) of the Commercial Arbitration Act 2012 (WA) (Act) to enforce two awards obtained in their favour. The awards were made in connection with disputes between the plaintiffs (as home owners) and the defendant (as builder) arising from a residential building contract.
  2. Section 35(1) of the Act states:
    An arbitral award, irrespective of the State or Territory in which it was made, is to be recognised in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36.
  3. The curial process by which an arbitral award is ‘enforced’ involves the enforcement of the obligations created by the award in substitution for the rights and liabilities which were the subject of the dispute that was referred to arbitration.[1] The process of enforcement permits the Court to enter judgment in accordance with the award, and make appropriate orders for the purpose of securing compliance with the award. This process is conceptually distinct from that of ‘recognising’ an award.[2]

[1] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533[79] (Hayne, Crennan, Keifel and Bell JJ). See also CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1 [73] – [74] (Quinlan CJ, Murphy JA and Bleby AJA).
[2] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [19] and [23] ((French CJ and Gageler J).

  1. The enforcement summons was listed for a hearing on 4 April 2024. The defendant, who was served with the summons, resisted the making of final orders at the hearing, and sought an opportunity to file affidavits and submissions in opposition thereto. These reasons explain why, at the conclusion of that hearing, I was satisfied the awards should immediately be enforced.
    B. Evidentiary material
  2. The plaintiff’s application was supported by three affidavits, being an affidavit of Hugh Mark O’Sullivan sworn 14 February 2024, an affidavit of Jocelyn Louise Thierfelder sworn 8 February 2024, and an affidavit of Claire Elizabeth Prendergast sworn 19 March 2024 as to service.
  3. The originating summons and supporting affidavits were formally served on the defendant on 19 March 2024. I was informed by counsel for the plaintiffs that the papers had been served on the defendant’s solicitor at an earlier point in time. In any event, an appearance to the proceeding was entered by solicitors on 22 March 2024 and counsel representing the defendant appeared at the hearing on 4 April 2024.
    C. Factual background
  4. The affidavits relied upon by the plaintiffs demonstrate the following matters.
  5. The two awards were made by the appointed arbitrator, Mr Hugh Davis, pursuant to an arbitration agreement contained within a written building contract entered into on 29 December 2020 between the plaintiffs and the defendant. By that building contract, the defendant was obliged to construct a new single storey dwelling for the plaintiffs in Witchcliffe, which is near Margaret River, in Western Australia. The consideration payable under the contract was $500,000.
  6. Disputes arose between the parties which led to notices of dispute being issued, and the arbitral proceedings being commenced. Mr Davis was appointed as the arbitrator on 7 September 2023, having been nominated to undertake that role by the Master Builders’ Association of Western Australia.
  7. The arbitral process was undertaken in a noticeably efficient manner by Mr Davis. On 4 October 2023, a preliminary conference was held between the parties and the arbitrator. Mr Davis delivered his interim award on 24 December 2023 (Interim Award) and delivered his final award as to costs on 29 January 2024 (Final Award).
  8. The plaintiffs were represented by solicitors and counsel during the course of the arbitral proceedings. The defendant was represented by a solicitor at various occasions during the course of those proceedings, as is recorded within the terms of the Interim Award.
  9. At the preliminary conference, the parties agreed that the scope and nature of the dispute between the parties was set out in the two notices of dispute and in the letter from the plaintiffs dated 11 July 2023. The parties also agreed that the two notices of dispute and the letter satisfied the requirements of the dispute resolution provision in the building contract (being cl 31). Further, the parties agreed that Mr Davis had jurisdiction to conduct the arbitration and agreed to the terms and conditions under which the arbitration was to be conducted.
  10. By the terms of the Interim Award, Mr Davis made the following award:
    1.1. The respondent, Mr Kerrigan, is liable to pay the claimants, the Thierfelders, $157,913.27 inclusive of GST and interest;
    1.2. Mr Kerrigan’s cost increase claim is dismissed;
    1.3. The date for practical completion is extended to 15 November 2022; and
    1.4. Mr Kerrigan must pay the sum due to the Thierfelders ($157,913.27) on or before 3 January 2024.
  11. Mr Davis provided comprehensive reasons for his Interim Award, running for some 40 pages, which was annexed to the Interim Award as Schedule 1. As appears from those reasons, the amount payable to the plaintiffs was comprised of the following amounts:
    (a) the sum of $105,000 representing the return of the lock up progress payment;
    (b) the sum of $6,714.25 representing interest on the lock up progress payment; and
    (c) the sum of $46,199.03 representing damages for breach of contract.
  12. I need only elaborate on the component which concerns the lock up progress payment. As recorded in the Interim Award, in November 2022, the defendant had submitted to the plaintiffs a progress claim for the lock up milestone payment in the sum of $105,000. The plaintiffs paid that amount in full, even though their position was that the defendant builder had not reached the lock up milestone and was not entitled to that payment. Within the arbitral proceedings, the plaintiffs sought an award for the return of the lock up milestone progress payment, plus interest.[3]

[3] Interim Award, [12].

  1. Mr Davis thereafter made the Final Award dealing with the costs of the arbitration, and provided brief reasons in support thereof which were annexed to the Final Award. By the terms of the Final Award, Mr Davis made the following award:
    1.1. The respondent, Mr Kerrigan, is to pay the Thierfelders’ costs of this arbitration to be taxed on the Supreme Court scale if not agreed;
    1.2. Mr Kerrigan is to pay the arbitrator’s fees;
    1.3. Mr Kerrigan is to pay related nomination fees and any other costs incidental to this arbitration.
  2. The amount ordered to be paid by the Interim Award was $157,913.27. That amount was payable by on or about 3 January 2024. No payment was made by Mr Kerrigan. Accordingly, it was necessary for these proceedings to be instituted by the plaintiffs in order to enforce the awards.
    D. The positions of the parties
  3. On 3 April 2024, the day before the return date of the summons, the defendant filed a minute of proposed orders which envisaged a process of affidavits and submissions being filed by the defendant, with responsive material to be filed by the plaintiffs. In contrast, the plaintiffs indicated they wished to move the Court for final orders to be made.
  4. In response, I directed that an email be sent to the parties (at 5.31 pm on 3 April 2024) to the following effect:
    Dear Parties
    I refer to the hearing scheduled for tomorrow. His Honour notes the defendant to the application proposes a set of orders requiring affidavits and submissions to be filed in opposition to the orders sought by the plaintiffs.
    At the hearing tomorrow, and having regard to the operation and effect of ss 35 and 36 of the Commercial Arbitration Act 2012 (WA), his Honour will seek from counsel for the defendant a succinct indication of the basis or bases upon which the application for enforcement is opposed.
  5. By email received by the Court at 7.26pm on 3 April 2024, the solicitors for the defendant informed the court as follows:
    Dear Associate
    Given the late hour, I am unable swear an affidavit setting out the defendant’s position and respectfully request that this email response be brought to His Honour’s attention.
    The defendant concedes that the arbitrator’s award is valid and does not seek to impugn that decision. However, it is submitted that recent events have occurred which may have an impact on the amount due and payable by the defendant under the award. It is for this reason that I sought directions from the Court to file an affidavit and submissions in opposition to the plaintiffs’ application.
    The first issue relates to the Arbitrator’s finding that the defendant rendered a payment claim for lockup in circumstances where lockup had not yet occurred. It is the defendant’s position that lockup has since occurred, which is supported by the attached independent reports…
    I have supplied these reports to the plaintiffs’ solicitor and attach my letter dated 25 March 2024 which demonstrates this.
    In my letter, I expressed the view that given lockup had occurred, the $105,000 refund (which formed part of the arbitrator’s award of $157,913.27) was not due and payable. I have recently received a response to this assertion from the plaintiffs solicitors, stating that lockup has not occurred and advising erroneously that the reports referred to above (as well as the defendant’s Appearance) had not been provided.
    I have responded to the plaintiffs’ solicitors demonstrating that those reports (and the Appearance) were indeed supplied and resent the original email containing my letter and those attachments.
    Additionally, His Honour will note from my correspondence dated 25 March 2024 that the defendant has rendered a price increase in the sum of $116,419.06 to the plaintiffs. It is submitted that any outstanding amount owed by the defendant to the plaintiff’s under the award can be set off against the price increase.[4]
    I respectfully seek orders to be made in terms of the proposed minute, so that the issue as to whether the $105,000 is payable and whether the price increase is valid (and therefore able to be set off against the award) can be determined by His Honour following submission of an affidavit and submissions.

[4] I observe that the ‘price increase’ issue fell away at the hearing of the matter on 4 April 2024.

  1. In essence, the defendant builder sought the opportunity to file material in opposition to the application for enforcement of the awards in light of factual events which were said to have occurred not only after the Interim Award was delivered, but after the date on which that award required compliance by the defendant.
  2. The specific factual issue was whether the construction of the residential building had reached lockup stage. As earlier noted, the Interim Award includes an amount of $105,000 which represents the lockup progress payment required to be repaid to the plaintiffs, the arbitrator having concluded that construction had not reached lockup stage and the lock up progress payment had not fallen due.
  3. The defendant builder was thus contending, before this Court, that the Interim Award should not be enforced, at least insofar as the lockup progress payment was concerned, for the practical reason that the amount will (at least according to the defendant) ultimately need to be paid back to the builder under the building contract. The defendant contended there was therefore no utility in having to now make that payment.
  4. The plaintiffs’ position, as expressed by Mr O’Sullivan at the hearing on 4 April 2024, was that, absent some indication of a recognised basis for the awards to be refused under the Act, the matter should not be delayed any further and orders should immediately be made for the enforcement of the awards.
    E. Disposition
  5. The view I took at the conclusion of the hearing was that the plaintiffs had demonstrated that the statutory requirements for enforcement of the awards had been satisfied and that, in the absence of some clear indication of a recognised basis to resist enforcement of the awards, there was no utility in permitting the defendant an opportunity to file additional material in the manner proposed, which would simply result in a further delay in enforcement.
  6. As to the statutory requirements for enforcement of an award under the Act, in respect of which the plaintiffs carried the burden of proof, I was satisfied as to the following matters:
    (a) First, I was satisfied that the arbitral proceedings resulted in the Interim Award and the Final Award being pronounced by the appointed arbitrator, Mr Davis. The defendant in fact accepted the awards were valid arbitral awards for the purposes of s 35(1) of the Act.[5] As to the evidentiary requirement in s 35(2) of the Act and r 24(2)(a) of the Supreme Court (Arbitration) Rules 2016 (WA) (the Rules), the affidavit material attached copies of the awards and the reasons of Mr Davis. For completeness I note that I was satisfied a written arbitration agreement was in existence between the parties (and, indeed, this was not in dispute). A copy was produced by the plaintiff through the affidavit of Mrs Thierfelder. Proof of such an agreement is not specifically required by s 35(1) of the Act, although the requirement that there be an arbitral award by necessity presupposes the existence of an underlying arbitration agreement.
    (b) Second, I was satisfied the plaintiffs had prepared the summons in accordance with Form 25, as is required by r 24(1) of the Rules.
    (c) Third, the summons was filed with a supporting affidavit which complied with r 24(2)(b) of the Rules. In particular, the affidavit of Mrs Thierfelder included a statement as to the extent to which the awards had not been complied with at the date of the summons,[6] and details of the address of the defendant.[7]
    (d) Fourth, and allied to the foregoing point, I was satisfied on the undisputed evidence that there had not been compliance with the terms of the payment obligation in the Interim Award.

[5] Email from Mr Jacobson sent on 3 April 2024.
[6] Affidavit of Mrs Thierfelder, [7].
[7] Affidavit of Ms Prendergast, [3].

  1. Satisfaction of the foregoing matters left for the Court’s consideration whether the enforcement orders should be made at the hearing or whether there was some proper basis to support the defendant’s contention that the matter should be delayed until material could be filed by the defendants.
  2. The view I took at the hearing was that enforcement orders should immediately be made.
  3. The primary reason I adopted that approach was that the defendant was unable to articulate a proper basis upon which he sought to resist the enforcement, the matters identified in the email from the defendant’s solicitor being inadequate in this regard.
  4. It is important to bear in mind that the bases upon which enforcement may be refused are only those set out in s 36 of the Act. An attempt to either set aside an award or to resist enforcement by re agitating matters already determined by the arbitrator, or seeking to re-characterise factual matters the subject of the award, or indeed to emphasise post-award factual events, will not fall within s 36 and are likely doomed to fail. Further, the party resisting enforcement carries the burden of proof to demonstrate that one or more of the matters in s 36 of the Act has been made out.
  5. The terms of s 36 are as follows:
    Grounds for refusing recognition or enforcement (cf. Model Law Art 36)
    (1) Recognition or enforcement of an arbitral award, irrespective of the State or Territory in which it was made, may be refused only —
    (a) at the request of the party against whom it is invoked, if that party furnishes to the Court proof that —
    (i) a party to the arbitration agreement was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of the State or Territory where the award was made; or

    (ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party’s case; or
    (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or
    (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the State or Territory where the arbitration took place; or
    (v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the State or Territory in which, or under the law of which, that award was made;

    (b) if the Court finds that —
    (i) the subject matter of the dispute is not capable of settlement by arbitration under the law of this State; or
    (ii) the recognition or enforcement of the award would be contrary to the public policy of this State.
    (2) If an application for setting aside or suspension of an award has been made to a court referred to in subsection (1)(a)(v), the Court may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security.
  6. When read with s 5 of the Act, the legislative policy revealed by pt 8 of the legislation (which is headed ‘Recognition and enforcement of awards’) is palpably clear. It is a policy of minimal curial intervention, as previously explained in this Court by Kenneth Martin J in Spaseski v Mladenovski,[8] by reference to a leading authority in the Singapore Court of Appeal, as well as in other decisions delivered in this Court’s Arbitration List.[9]

[8] Spaseski v Mladenovski [2019] WASC 65 [49] – [58].
[9] Ivankovic v Western Australian Planning Commission [2020] WASC 40; The State of Western Australia v Mineralogy Pty Ltd [2020] WASC 58; and Venetian Nominees Pty Ltd v Weatherford Australia Pty Ltd [2021] WASC 137.

  1. Section 5 states as follows:
    5. Extent of court intervention (cf. Model Law Art 5)
    In matters governed by this Act, no court must intervene except where so provided by this Act.
  2. This principle of minimal curial intervention recognises the autonomy and finality of the arbitral process, which the parties to an arbitration are taken to have accepted.
  3. The terms of the legislation require that a party to an award who wishes to resist enforcement must fight that battle on one or other of the grounds specified in s 36 of the Act. There is no residual discretion vested in the Court to otherwise refuse enforcement. The faint submission to the contrary made by the defendant must be rejected.
  4. This point was dealt with, at least by way of analogy, by Stewart J in Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company.[10] The Full Federal Court was there addressing the operation of the International Arbitration Act 1974 (Cth) (IAA) rather than the model State legislation. In particular, the Court examined the effect of s 8(3A) of IAA.[11] Stewart J in that case recognised the significance of the inclusion of the word ‘only’ in the chapeau to the equivalent provision to s 36(1) of the Act. Stewart J observed:
    [19] Section 8(3A) of the IAA, by use of the word ‘only’, makes it clear that an enforcing court has no residual discretion to refuse enforcement; enforcement can be refused only if one or other of the grounds for refusal in subs (5) and (7) is made out.

[10] Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110; 396 ALR 1 [19] (Stewart J, Allsop CJ and Middleton J agreeing).
[11] The language of which is substantially similar to the language in s 36 of the Act.

  1. In contrast, and consistent with the underlying policy of the legislation, the Court retains a residual discretion to recognise or enforce an award even if the statutory grounds in s 36 are made out. The inclusion of the word ‘may’ in s 36(1) confirms the existence of this discretion, which is further supported by Australian authority.[12]

[12] Spaseski v Mladenovski [64]; Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163 [23] (Croft J); and Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [90] (Stewart J).

  1. In the absence of a clearly articulated basis under s 36 of the Act to resist enforcement of an award, a defendant to a summons for enforcement of an award should expect in the ordinary course that the Court will make final orders pursuant to s 35(1) of the Act on the first return of the summons (where there has been proper notice to the defendant), subject to satisfaction of the statutory requirements for enforcement. Such an approach is not only consistent with the terms of s 36 of the Act, but also with the paramount object of the legislation as stated in s 1C of the Act, which relevantly provides:
    1C. Paramount object of Act
    (1) The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.
    (2) This Act aims to achieve its paramount object by —
    (a) enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and
    (b) providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.
  2. The notions of unnecessary delay and expense resonate with the goal and objects of this Court’s practice and procedures, as detailed in O 1 r 4A and O 1 r 4B of the Rules of the Supreme Court 1971 (WA). Order 1 r 4A provides that:
    The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
  3. The objects stated within O 1 r 4B include the efficient disposal of the business of the Court, and the need to ensure that the procedures applicable, and the costs of the procedures to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute.
  4. In my opinion, it would have been counter to these objects, and the above stated goal, as well as the paramount object in the Act, to make programming directions to permit the defendant to file submissions and affidavits in opposition to the application, bearing in mind the absence of any stated ground under s 36 and, importantly, having regard to the relatively low value of the dispute in question.
  5. The Interim Award required that the defendant builder pay the sum of $157,913.27 to the plaintiffs. Allowing a futile process to unfold by which affidavits in opposition would be filed, competing submissions exchanged, and a final hearing listed, all of which would see further legal fees incurred, is likely to have significantly eroded the value of the award. The Court should be astute to ensure that the fruits of the arbitral process are not eaten away by the costs of the enforcement process.
    F. Conclusion and orders
  6. It was for the foregoing reasons that I declined to make programming directions at the hearing, and instead made orders for immediate enforcement of the Interim Award and the Final Award.
  7. As to the form of the orders to be made, the order sought by the plaintiffs in the present case was simply that the award ‘be enforced’. Recent practice of this Court has been to enter judgment for the enforcing party as the first act of enforcement, where the requirements of s 35(1) of the Act have been satisfied. The approach I adopted in the present matter was to make orders for judgment to be entered in favour of the plaintiffs. At least one reason for adopting this approach is to minimise any difficulties with the parties’ ability to pursue the enforcement and other mechanisms which are available under the Civil Judgments Enforcement Act 2004 (WA).
  8. That said, the difference in language between s 35(1) of the Act and its predecessor is to be noted. The current provision, which gives effect to the UNCITRAL Model Law on International Commercial Arbitration, authorises the Court to enforce an award upon application by a party.[13] The predecessor provision to s 35(1) was more fulsome in terms. Section 33 of the now repealed Commercial Arbitration Act 1985 (WA) provided that:Enforcement of Award
    An award made under an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order of the Court to the same effect, and where leave is so given, judgment may be entered in terms of the award.

[13] The award is recognised as binding upon being pronounced, a point which I noted earlier in these reasons.

  1. The language of s 33 of the repealed legislation thus explicitly authorised an award to be enforced in the same manner as a judgment and for judgment to be entered.
  2. To complete the analysis, I note that the language of s 8(2) and s 8(3) of the International Arbitration Act 1974 (Cth) speaks in terms of a foreign award being enforced in a court of a State of Territory, or in the Federal Court, ‘as if the award were a judgment or order’ of those courts.
  3. As noted above, to alleviate any doubt on the issue and minimise enforcement difficulties, I adopted the view that judgment should formally be entered in favour of the plaintiff (rather than simply order that the awards be enforced). The entering of judgment operates as an act of enforcement of the award.
  4. The final orders made following the hearing on 4 April 2024 were:
    1. Pursuant to s 35(1) of the Commercial Arbitration Act 2012 (WA), the Interim Award of Mr Hugh Davis dated 24 December 2023 (awarding the total sum of $157,913.27, inclusive of GST) and the Final Arbitral Award of Mr Hugh Davis dated 29 January 2024, be enforced.
    2. Judgment be entered for the plaintiffs against the defendant in the sum of $157,913.27 inclusive of GST, plus $24.85 interest per day (on the amounts identified in paragraphs 135.1 and 135.3 of the Interim Award), calculated from 24 December 2023 to 5 April 2024 at a rate of 6% per annum, totalling $2,599.55 of interest, being a total judgment sum of $160,512.82.
    3. In addition, the defendant do pay the plaintiffs’ costs of these proceedings fixed in the sum of $5,371, which sum is inclusive of the filing fee.
    4. The matter is otherwise referred to a Registrar for directions with respect to the assessment of the plaintiffs’ costs in accordance with the Final Arbitral Award of Mr Hugh Davis dated 29 January 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Associate to the Honourable Justice Lundberg

9 APRIL 2024