Contested Wills & Estate Litigation

Tully is a specialist commercial litigator with more than 20 years’ experience. He practices almost exclusively in the Supreme and Federal Courts and has been involved, both as counsel and as instructing solicitor, in many trials and interlocutory hearings, including applications for interlocutory injunctions.

Tully is an experienced commercial negotiator and has had great success in resolving disputes for his clients through mediation without the expense and delay of a trial. In the modern commercial litigation practice the ability to negotiate effectively, either at formal mediations or meetings generally, is an essential skill.  Tully believes that you should never lose sight of the end result, the key is to identify the client’s goal, then move to achieve that goal in a commercial and efficient way, but also in a way that is proportionate to the nature of the dispute.

While Tully has a broad range of experience, he has made a particular speciality of disputes involving the breakdown of the relationship between the co-owners of businesses. Whatever the structure – partnership, company or unit trust – he is able to guide his clients through these difficult situations, which generally involve divergent views as to relative contributions and expectations.

Tully is a member of the Law Society of Western Australia and a member of the Australian Institute of Company Directors. Tully is a Director of Williams + Hughes.

Recent litigation matters Tully has conducted in Court include:

• Supreme Court proceedings relating to the proper construction of a pig supply contract. The proceedings included an interlocutory injunction application that was resolved on the basis of an expedited trial and other contested interlocutory hearings: GD Pork Pty Ltd v Derby Industries Pty Ltd [2018] WASC 223.
• Obtained summary judgment in the Supreme Court against an insurer in relation to payments under performance bonds issued to a principal under a construction contract: Swanhill Enterprises Pty Ltd v QBE Insurance (Australia) Ltd [2017] WASC 279.
• Supreme Court proceedings in relation to claims of proprietary estoppel and constructive trust by an adult daughter against her mother and siblings: Lafferty v Waterton [2017] WASC 302.
• Proceedings in the Court of Appeal involving the proper construction of the provisions of the Civil Liability Act 2002 (WA) relating to proportionate liability and the joinder of additional defendants: Hart v JGC Accounting & Financial Services Pty Ltd(2015) 47 WAR 582; [2015] WASCA 22.
• Proceedings in the Supreme Court for a freezing order against an employee acting in breach of fiduciary duty: Red Chamber Co v Red Chamber Foods Australia Pty ltd [2015] WASC 198.
• Proceedings in the District Court for enforcement of an adjudication under the Construction Contracts Act 2004 (WA): Witham v Raminea Pty Ltd [2012] WADC 1.
• Proceedings in the Supreme Court in relation to the proper construction of a will and the operation of the Trustees Act 1962 (WA): Synod of the Anglican Catholic Church in Australia v Tee (2012) 7 ASCLR 365; [2012] WASC 46.
• Proceedings in the Supreme Court to set aside a statutory demand issued by an  equipment manufacturer against a goldmine operator: Apex Gold Ltd v Atlas Copco Australia Pty Ltd [2011] WASC 49.
• Proceedings in the High Court of Australia involving the overlap between protection of intellectual property under the Copyright Act 1968 (Cth) and the Designs Act 1906 (Cth) and works of artistic craftsmanship: Burge v Swarbrick (2007) 232 CLR 336; [2007] HCA 17.

Digby practices in the area of litigation and dispute resolution. He appears regularly in the superior Courts, including as trial Counsel, and consistently over the last decade been rated by clients and peers as a leading dispute resolution lawyer.

Digby seeks to focus on the important issues with a view to achieving a speedy resolution. He appreciates the need to consider carefully the commercial aspects of a dispute and not only the 'black letter' law.

Digby believes in formulating a strategic plan with clients to achieve results including, where appropriate, taking an aggressive approach. Litigation is an investment decision and ought to be approached in the same way as any other investment.

Digby is a member of both the WA and NSW Law Societies. He is regularly engaged by interstate firms whose clients require representation in WA and acts for a number of overseas clients.

Digby is a founding Director of Williams + Hughes.

As independent and objective verification of Digby's advocacy experience, see the below links to some cases in which he has appeared as counsel:

• Successfully defended against appeal against a decision to set aside a subpoena. See Kenworthy-Groen as Admins of Estate of Grove v Grove [2022] WASCA 120
• Successfully defended an appeal against a decision to award costs arising from application for letters of administration. See Grove v Grove [2022] WASCA 86
• Successfully applied to the Supreme Court have an action transferred to the Federal Court. See UON Pty Ltd v Hoascar (No 3) [2021] WASC 17
• Successfully applied on behalf of the plaintiff to have a Subpoena to a third party set aside. See Grove v Simon Dirk Kenworthy-Groen as administrator of the estate of William Grove [2021] WASC 374
• Acting for a beneficiary under a will in successfully resisting orders sought by the executor that a gift to the beneficiary had failed by ademption. See Gangemi v Sparta [2021] WASC 441
• Obtaining judgment for a subsidiary of an ASX listed company in a contractual dispute. See Culleton v Inghams Enterprise Pty Ltd [2019] WADC 79 
• Obtaining judgement and an order for account in a Supreme Court claim by administrators of an estate against the deceased's former solicitor. See Smith and Chivers (as Administrators of the Estate of Allan William Brown) v Thompson [2019] WASC 111  
• Defending a client against a Supreme Court claim for breach of contract in relation to allegations of a claim of alleged misappropriation of confidential information. Including successfully resisting an attempt to injunct the firm from acting and resisting an application for summary judgement. See UON Pty Ltd v Hoascar [2017] WASC 79
• Successfully opposing a Supreme Court application to set aside a statutory demand in relation to a director of an Australian listed mining company. See Aus Asia Minerals Ltd v Ball [2015] WASC 399
• Acting for a minority shareholder in a Supreme Court claim against the majority shareholders for oppression. Judgement was awarded for the minority shareholder. See Murabito v Conspect Construction Pty Ltd [2014] WASC 474
• Acting for Mount Gibson and Koolan Iron Ore defending Supreme Court proceedings by a service provider. The defence was successful and the contractor’s claim was dismissed. See Eccles v Koolan Iron Ore Pty Ltd (No 3) [2013] WASC 418
• Acting for the liquidator in the complex administration/liquidation of the company developing the Raine Square complex in Perth’s CBD. This matter involved a complex dispute with the banks and the receivers including attempts to remove the liquidator and appoint a special purpose liquidator.
• Acting in a claim for negligence (as trial Counsel) against a large firm of financial advisors. The dispute was successfully resolved on the first day of trial.
• Acting for the Court appointed independent trustee in assisting to resolve a $30 million trust dispute and in litigation arising from that dispute and liquidating and selling the assets for the benefit of the beneficiaries.
• Successfully defending an accountant in multiple Supreme Court and District Court actions for negligence and breach of fiduciary duty.
• Acting for minority shareholders in a complex dispute with majority shareholders in relation to a multi-million dollar development in Queensland.
• Acting for the Shire of Peppermint Grove (as trial Counsel) in the State Administrative Tribunal in relation to the demolition of the partially completed Oswal mansion.
• Advising a corporate trustee in relation to a dispute regarding the management of trust assets in excess of $15 million.