32 Domain Pty Ltd v Hazell-Wright
[2019] VCC 629
•13 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-03401
| 32 DOMAIN PTY LTD (ACN 163 035 603) | Plaintiff |
| v | |
| CLARE HAZELL-WRIGHT | Defendant |
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JUDGE: | HER HONOUR JUDGE A RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2019 | |
DATE OF RULING: | 13 May 2019 | |
CASE MAY BE CITED AS: | 32 Domain Pty Ltd v Hazell-Wright | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 629 | |
REASONS FOR RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Pleading summons – applicable principles – whether leave should be given to file proposed amended defence and counterclaim – joinder of proposed defendant to counterclaim – application of Harman implied undertaking not to use documents for collateral purpose
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic)
Cases Cited:Bashour v Australia and New Zealand Banking Group Ltd [2017] FCA 163
Hearn v Street (2008) 235 CLR 125;
Hoh & Ors v Frosthollow [2014] VSC 77;
Liberty Funding Pty Ltd v Phoenix Capital [2005] 218 ALR 283 at 289;
Fotopoulos v Commonwealth Bank of Australia [2017] VSC 461;
Mandie v Memart Nominees Pty Ltd [2016] VSCA 4;
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345
Spalla v St George Motor Finance 209 ALR 703
Springfeld Nominees Pty Ltd & Ors v Bridgelands Securities Ltd (1992) 38 FCR 217
Tomasevic v State of Victoria [2018] VSCA 325
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Mr I Wright | Mr C E Shaw | SBA Law |
| For the Defendant | Mr T North QC with Dr E Kelly | Nicholes Family Lawyers |
HER HONOUR:
1 By summons filed 15 February 2019, the defendant seeks leave to file an amended defence and counterclaim in the form of Exhibit SN-17 to the affidavit of Sally Nicholes sworn 15 February 2019. The defendant also seeks leave to join Mr Ian Wright (“Wright”) as a defendant to the proposed counterclaim.
2 The plaintiff relies upon an affidavit of Andrew Green sworn 19 February 2019. In response, the defendant relies upon a further affidavit of Ms Nicholes sworn 20 February 2019.
Background
3 This proceeding was commenced by writ on 7 August 2018. The plaintiff is the registered proprietor of a property known as Unit G1, 32 Domain Street, South Yarra (“the apartment”). It is alleged the defendant occupied the apartment without the licence or authority of the plaintiff between 20 July 2016 and 14 November 2017. The plaintiff claims loss of rental income estimated at $331,200; alternatively, holding costs that would otherwise not have been incurred.
4 Wright is the sole director of the plaintiff and was previously married to the defendant. The plaintiff is a corporate trustee for the 32 Domain Discretionary Trust. The apartment was the former matrimonial home where the defendant and the children of the marriage resided. The defendant and Wright were involved in protracted proceedings in the Family Court of Australia over property and parenting issues.
5 On 15 November 2018, the defendant filed a summons seeking security for costs, orders for discovery and particulars and leave to file an amended defence. The application was heard by her Honour Judge Marks on 11 December 2018. Following detailed written and oral submissions, her Honour declined to make an order for security for costs. Her Honour provided leave in respect of the proposed amended defence save for various paragraphs which were identified. Judge Marks granted the defendant leave to make further amendments. The issue of a counterclaim was not raised before her Honour.
6 The defendant served a further proposed amended defence and counterclaim on the plaintiff on 1 February 2019.
7 The plaintiff’s lawyers did not consent to the document being filed because of perceived deficiencies in the pleading, in particular, paragraph 4(d). The plaintiff said it did not understand the case it had to meet with respect to the allegations of estoppel. Further, the plaintiff noted that documents referred to in the proposed pleading had been filed by Wright in the Family Court of Australia Proceeding MLC4064-2016 (the “Family Court proceeding”) and could be subject to Harman[1] obligations and non-disclosure restrictions under Schedule 1 of the Family Law Rules 2004 (Cth). The documents identified were three affidavits (affirmed 9 May 2016, Exhibit SN-22; 5 July 2016, Exhibit SN-26; and 26 May 2017, Exhibit SN-42) and a financial statement affirmed by Wright on 18 May 2017 (“the financial statement” - Exhibit SN-40). The plaintiff invited the defendant to provide a revised amended defence addressing these concerns and did not consent to the counterclaim being filed.
[1]Harman v Secretary of State for the Home Department [1983] 1 AC 280
8 On 12 February 2019, the defendant’s solicitors sent a 10 page letter (Exhibit SN-19) responding to the plaintiff’s concerns and asking the plaintiff to reconsider its objections. The plaintiff was put on notice that the defendant would be making an application for leave to file its counterclaim.
9 The plaintiff opposed the defendant’s application for leave to file the proposed defence and counterclaim due to the perceived continued deficiencies in the proposed pleading. The plaintiff and Wright also oppose the joinder of Wright to the counterclaim on the basis that joining him as a party is inutile and therefore inappropriate.
10 The issues for determination were reduced to four discrete matters, namely:
(1)the adequacy of paragraph 3(l) of the proposed amended defence;
(2)the adequacy of paragraph 4(d) of the proposed amended defence;
(3)should the defendant be given leave to file the proposed counterclaim and be permitted to join Wright as a defendant to the counterclaim; and
(4)should paragraphs in the proposed pleading referring to documents filed on behalf of Wright in the Family Court proceeding be struck out because they offend the Harman obligation.
(1) Paragraph 3(l)
11 The form of the then existing paragraph 3(l) was the subject of debate before Judge Marks on 11 December 2018. As a means of resolving the ambiguity which was said arise by that paragraph, her Honour suggested that the wording be amended to the form in which it currently exists. This form was formulated in “Other Matters” in the orders made 11 December 2018. The current draft pleading does incorporate the amendments permitted by her Honour.
12 In this application, the plaintiff seeks to challenge once more the contents of this paragraph on the basis that the matters disclosed are not sustainable. It is the subject of some considerable dispute between the parties as to whether the plaintiff in this proceeding, being a company, was a “party” to the proceeding in the Family Court. It was conceded by Senior Counsel for the defendant that the plaintiff was not named as an applicant or a respondent but, so the argument went, the plaintiff should be regarded as being a party because of the opening matters relied upon in paragraph 3(l). These were the matters in the draft pleading which Judge Marks permitted to go forward.
13 There will be, no doubt, considerable argument at trial as to whether the plaintiff should be treated as having been a party in the Family Court proceeding. The arguments put forward in support of this proposition were tenuous and not particularly persuasive in my view. But applying the test stated by the Court of Appeal in Mandie v Memart Nominees Pty Ltd[2], it has not been shown that the point raised has no real prospects of success, such that it would serve no purpose because it would not survive a summary judgment application
[2][2016] VSCA 4, [47]
14 However, and more importantly, this issue was debated before Judge Marks and her Honour allowed the paragraph to go forward in the manner in which she outlined. It is not permissible now for the plaintiff to re-agitate these matters when a decision has already been made. No appeal has been sought against the orders made by her Honour and in the circumstances, the plaintiff is bound by the order which Judge Marks made in respect of this paragraph on 11 December 2018. Consequently, I will not strike out paragraph 3(l).
(2) Paragraph 4(d)
15 In “Other Matters” of the orders made on 11 December 2018, Judge Marks noted that material facts should be pleaded in respect of the estoppel plea to plead the specific material facts relied on for each estoppel alleged and it was insufficient to simply have a rolled-up plea.
16 The proposed paragraph 4(d) is as follows:
“The plaintiff and Mr Wright are now estopped from re-litigating and from otherwise alleging that Mr Wright or the plaintiff is entitled to any loss and damage or that rental or any fees should be paid by reason of Ms Hazell-Wright and the children residing in the apartment by reason of the matters pleading in paragraphs 2(l) and 3(j-ll):
(i) with respect to claims to rights and obligations which were asserted by Mr Wright, on his own behalf and on behalf of the plaintiff, and determined in the Family Court Proceeding by way of Final Parenting Orders and Final Orders;
(ii) with respect to issues of fact and law which were asserted by Mr Wright, on his own behalf and on behalf of the plaintiff, and necessarily resolved in the Family Court Proceeding as steps in reaching the final parenting orders and final orders;
(iii) with respect to subject matter closely connected to that raised and determined in the Family Court Proceeding asserted by Mr Wright, on his own behalf and on behalf of the plaintiff, by way of claims, issues of fact and issues of law.
17 During the course of the oral hearing, Counsel for the defendant produced a further copy of the proposed amended pleading. This version incorporated copious particulars under paragraph 4(d), which had previously been set out in the letter from the defendant’s solicitors dated 12 February 2019. The particulars provided relate to cause of action estoppel, issue estoppel, and Anshun estoppel. This is the document upon which leave was ultimately sought. Counsel for the plaintiff did not object to the receipt of this version for the purposes of the argument.
18 The complaint of the plaintiff is that it still does not know the case it has to meet. There are a number of bases for this submission. The first is that the paragraph refers to 29 paragraphs that were relied upon in 2(l) and 3(j)-(ll). Many of these paragraphs comprise multiple sub-paragraphs and the defendant then says by reason of those paragraphs certain consequences follow. The plaintiff says it is unable to understand how any alleged estoppel is said to arise and in relation to what facts give rise to the estoppel.
19 I consider the form of paragraph 4(d) is embarrassing. It is not an acceptable way of pleading to repeatedly refer back to numerous other paragraphs. As noted in Hoh & Ors v Frosthollow[3], when dealing with principles of pleading Derham AsJ said, amongst other things, that extensive cross referencing of facts in a pleading may render parts of the pleading unintelligible. Additionally, his Honour noted that a pleading should not be so prolix that the opposite party is unable to understand with precision the causes of action and the material facts that are alleged against it. In my view, paragraph 4(d) falls foul of both these principles. The extensive reference back to other paragraphs and the prolix way in which the paragraph is framed, especially the particulars, makes it unintelligible.
[3][2014] VSC 77, [13]
20 The second matter raised by the plaintiff is that Wright is not a party to the proceeding and therefore cannot be estopped. This is a matter which was raised before Judge Marks who ruled that she was not going to allow an allegation of estoppel against someone who was not a party. No doubt, this has now led to the present application seeking to join Wright as a defendant to the counterclaim. But he is not making a claim in the proceeding. The plaintiff company brings the claim, not Wright. He seeks no relief. Therefore, there is presently no claim which he can be estopped from bringing. Insofar as paragraph 4(d) raises an estoppel claim against Wright, it is unsustainable in my view and should not be permitted as it has no real prospects of success applying the Mandie test.
21 Thirdly, the plaintiff argues it is not clear whether what is alleged gives rise to a cause of action estoppel, an issue estoppel, or an Anshun estoppel despite the particulars. For example, when pleading issue estoppel, the plaintiff noted it is necessary to identify with precision the issues decided in the first proceeding and the issues that fall for determination in the second proceeding, in order to determine whether there is the requisite identity between any of the issues in the two proceedings. Additionally, the proceeding must be between the same parties or their privies.[4]
[4]Tomasevic v State of Victoria [2018] VSCA 325, [53] and [46] to [48]
22 Despite the matters referred to by Judge Marks on 11 December 2018, the defendant has not descended into the detail required setting out more precisely the material facts relied upon to found the alleged various estoppels. The particulars provided since the previous hearing do not improve upon the position. In my view, the contents of paragraph 4(d), including the particulars, are confusing, prolix and unintelligible. The paragraph fails to set out in any precise and intelligible way the allegations or the matters which are said to have arisen in the Family Court proceeding as having been raised and/or determined and which are now precluded from being litigated in this proceeding. Further, the material facts giving rise to the various estoppels should be squarely pleaded in the paragraph itself rather than in the particulars. For all these reasons, I will order that paragraph 4(d) be struck out and the defendant have leave to replead.
(3) Counterclaim
23 The defendant seeks to bring a counterclaim alleging the plaintiff is estopped from bringing this proceeding. Wright is sought to be made a defendant to that counterclaim under r 9.02 of the County Court Civil Procedure Rules.
24 Paragraph 6(d) of the proposed counterclaim pleads promissory estoppel whereby Wright and the plaintiff, who is first defendant by counterclaim, are estopped from seeking damages or compensation in respect of assumptions that they induced the defendant as plaintiff by counterclaim to adopt with respect to occupancy by her of the apartment. Relief is also sought against the plaintiff and Wright by way of declarations. It was said during the course of argument that the purpose for seeking to join Wright was to pursue a costs order against him. Counsel for the plaintiff submitted that this in itself was an abuse of process.
25 The plaintiff notes that various estoppels are relied upon as a defence, namely, cause of action estoppel, issue estoppel, and Anshun estoppel. The plaintiff acknowledges that if these matters could be established that may indeed be an answer to the plaintiff’s claim. Similarly, the plaintiff says the defendant could also allege as a defence to the claim that promissory estoppel applies, but this form of estoppel would not give rise to a counterclaim. Further, it is said there is no need or utility in making Wright a party as he brings no claim. Given these matters, the plaintiff submits the counterclaim should not be allowed to proceed.
26 The counterclaim as presently formulated pleads an estoppel against Wright from seeking damages or compensation. The difficulty with this, as with paragraph 4(d) of the defence, is that Wright makes no claim for damages or compensation. Consequently, there is nothing to estop him from doing in circumstances where he makes no claim against the defendant.
27 If, in fact, the defendant relied upon various assumptions made by the plaintiff, through its proper officer, Wright and acted to her detriment, then promissory estoppel may well arise to prevent the plaintiff from enforcing its claim. I accept the submission put by counsel for the plaintiff that this more properly arises by way of a defence, being in the nature of a ‘shield’, rather than by way of counterclaim.
28 Additionally, I regard the pleaded declarations sought as being incompetent. For example, a declaration is sought in paragraph A(c) of the relief sought that the plaintiff acted unconscionably. No equitable claim is pleaded in the counterclaim setting the basis of a separate claim for unconscionability. If it is to be relied upon as an element of promissory estoppel, namely, that the plaintiff has acted unconscionably in departing from the alleged assumptions, then this should be pleaded in the counterclaim.
29 Similarly, there is a declaration sought that the proceeding is an abuse of process by the plaintiff and Wright but the basis for that declaration is not the subject of any pleaded claim in the counterclaim. Again, it must be noted that Wright has not brought the proceeding so it is problematic as to how this abuse of process claim can be made out against him when he is not suing the defendant.
30 Self-evidently, the defendant is not barred from bringing separate and independent claims against the plaintiff and/or Wright in a counterclaim but if these causes of action are to be relied upon, such as abuse of process or unconscionability, they must be properly and clearly articulated in the counterclaim.
31 Many of the declarations pleaded in the proposed counterclaim are defective in form. For example, paragraphs A(b), (d) and (e) of the proposed relief are more in the nature of factual findings a court might make in reasons for decision rather than being any recognised form of declaratory relief.
32 For all these reasons, I am not satisfied that leave to file the counterclaim as it currently appears should be given, nor am I persuaded it has been demonstrated that Wright should be joined as a defendant to the counterclaim because he is a necessary and proper party pursuant to r 9.02. I regard the proposed counterclaim as having no real prospect of success applying the Mandie test and should not be allowed. Accordingly, leave is refused to file the proposed counterclaim and to join Wright as a defendant to the counterclaim.
(4) Implied undertaking
33 The plaintiff submits the affidavits are subject to the implied undertaking not to use documents other than for the purpose of the proceeding, which is described as the Harman undertaking.[5] It submitted further that the financial statement having been produced by an order of the Court and not relied on in evidence would also be the subject to the implied undertaking. In those circumstances, the plaintiff argues it is impermissible for the defendant to seek to rely upon two affidavits of Wright together with his financial statement and to the extent that the proposed defence relies on those matters it should not be permitted.
[5]Liberty Funding Pty Ltd v Phoenix Capital [2005] 218 ALR 283 at 289 per Branson, Sundberg and Allsop JJ
34 The defendant contended in her written submissions the Harman undertaking did not apply because:
(1) the purpose for which the affidavits and financial statement are relied upon in these proceedings is directly connected with and intimately related to the purpose for which they were initially made available in the Family Court proceeding, namely to determine with respect to the apartment: legal and equitable interests, use and occupation;
(2) the affidavits were filed voluntarily rather than pursuant to coercive curial processes;[6]
[6]cf Hearn v Street (2008) 235 CLR 125, [96]
(3) the affidavits were received into evidence before Cronin J as they were referred to in interlocutory rulings on 5 May 2017 and 30 May 2017;
(4) the affidavits and financial statements could not sensibly be regarded as an invasion of the plaintiff’s or Wright’s privacy or confidentiality – or as for any purpose other than the doing of justice between the plaintiff, Wright and the defendant – in litigation processes in which Mr Wright has chosen, personally and in his capacity as sole director of the plaintiff, to dispute the defendant’s ownership, use and occupation of the apartment: the Family Court proceeding having been commenced by him and dealt expressly with the occupation of the apartment and the alleged holding costs;
(5) each of the affidavits were used by Wright in his own capacity and that of a sole director, secretary and shareholder of the plaintiff as registered proprietor to deal with the family’s occupation of the apartment.
35 The Harman principle was conveniently summarised by Derham AsJ in Fotopoulos v Commonwealth Bank of Australia.[7]His Honour described it as follows:
“The principle is that where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The obligation, or duty, is usually called the implied undertaking to the Court. The High Court make clear that the implied undertaking is in truth a substantive legal obligation or duty imposed by law on the litigants, their servants or agent (or privies) and others.” (citations omitted)
[7][2017] VSC 461
36 The obligation extends not only to the documents but also copies and information derived from those documents. The type of documents covered by the undertaking may include affidavits. The obligation can be released or modified by the Court, but that dispensing power is not freely exercised and will only be exercised where special circumstances appear.[8] Where a release from the undertaking is sought, an assessment is made of the likely contribution of the document to achieving justice in the second proceeding.[9] Many of the cases dealing with this topic arise from applications made to a court seeking to be released from the undertaking. As can be seen from the applicable principles, the Harman undertaking is a substantive legal obligation and cannot be dispensed with readily.
[8]Ibid at [32], [33] to [36]
[9]Springfeld Nominees Pty Ltd & Ors v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225 per Wilcox J
37 In the course of his oral submissions, counsel for the defendant argued the Harman undertaking did not apply for two reasons. The first reason was that the implied undertaking is not applicable where the issues in the litigation are so intimately related then there is no offence of collateral purpose. Counsel relied upon the decisions in Spalla[10] and Northbuild[11] in support of that proposition. The second reason was that if the documents are read into evidence, then the undertaking ceases to have effect.
[10]Spalla v St George Motor Finance 209 ALR 703
[11]Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345
(i) Are the issues in the two proceedings sufficiently intimately related?
38 The proceedings in the Family Court were commenced by Wright initially in respect of property and parenting orders. The defendant subsequently filed a divorce application. The proceeding had a protracted history in the Family Court resulting in final consent orders being made disposing of the proceeding on 29 January 2018. The named parties were the defendant in this proceeding and Wright. It is conceded the plaintiff was not named as a party but it is said orders were made, including injunctive relief which had the effect of binding the plaintiff, because Wright was restrained in his capacity as sole director of the plaintiff, from dealing or disposing of the apartment owned by the plaintiff.
39 In this proceeding, a claim is made by the plaintiff for rent and/or holding costs associated with what it says an impermissible use of the apartment by the defendant. The first point to be made is that the parties in the two proceedings are not identical. Counsel for the plaintiff says that the issues involved are not sufficiently similar. I agree. The applications in the Family Court related to the disposition of assets in the matrimonial pool, including the apartment, the enforceability of a prenuptial agreement, parenting orders, and a divorce application. The issue in this proceeding is confined to a discrete claim for recovery of rent and/or holding costs said to be owed to a corporate plaintiff because the defendant was trespassing over a defined period of time. I am not satisfied that the issues raised in the two proceedings are sufficiently similar such that the undertaking does not come into play. Given this, then the Harman obligation applies unless a release has been sought from the Family Court, which has not occurred.
(ii) Have the disputed documents been read into evidence?
40 Paragraph 12 of the plaintiff’s outline of submission identified the paragraphs of the proposed pleading which it argued should be deleted because of the impermissible reference to the Family Court documents in breach of the Harman undertaking.
41 There was a dispute between the parties as to whether the affidavits affirmed by Mr Wright on 9 May 2016 and 26 May 2017[12] and his financial statement dated 18 May 2017 went into evidence in the Family Court proceeding.
[12]The objection to the affidavit of July 2016 raised previously by the plaintiff’s solicitors was not pursued at the hearing of the application.
42 The evidence of Mr Green was that neither the affidavits of Mr Wright affirmed on 9 May 2016 and 26 May 2017 nor his financial statement dated 18 May 2017 went into evidence in the Family Court. These matters were disputed by Ms Nicholes in her affidavit of 20 February 2019.
43 The affidavit of 9 May 2016 was filed in support of Wright’s initiating application in the Family Court proceeding relating to property and parenting matters. Counsel for the plaintiff submitted that there was no evidence that this affidavit had been read into evidence. This appears to be correct. Paragraph 11 of the defendant’s written submissions relied upon Cronin J’s ruling of 5 May 2017 (“SN-39”) in support of the argument this affidavit was received into evidence. This ruling related to a discrete issue on discovery. There is no reference in the ruling to the affidavit of 9 May 2016. I am not satisfied on the materials before me that this affidavit was received into evidence. Therefore, this affidavit remains subject to the Harman undertaking unless a release is sought.
44 The affidavit of 26 May 2017 and the financial statement were referred to in the outline of submission prepared by Counsel for Wright (“SN-55”) in support of the application due to be heard by Cronin J on 29 May 2017.
45 The affidavit of 26 May 2017 was referred to by Cronin J in his reasons for judgment dated 30 May 2017 (“SN-45”). This decision related to an application for an adjournment of the substantive hearing by the defendant. His Honour quoted from the affidavit in his reasons and made several references to it in paragraphs 11, 12, 14 and 16 of his reasons. Although his Honour said he had not had the benefit of hearing the evidence in paragraph 16, I am satisfied that this affidavit was received into evidence in the Family Court for the purpose of the adjournment application with the effect that the Harman undertaking ceases to apply. Therefore, the reference to this affidavit in the proposed pleading is permissible.
46 There was some discussion about whether the affidavits were filed pursuant to an order of the Family Court or voluntarily. This matter was referred to in the defendant’s written submissions but not developed in the defendant’s oral argument. There is a debate in the authorities whether this distinction has a role to play when considering the application of the Harman undertaking.[13] Counsel for the plaintiff said the law was unclear but submitted the proper view is that if the affidavits are filed, whether under compulsion or not, notice is thereby being given of the evidence to be relied upon which should be subject to the implied undertaking. The issue does not arise for the 26 May 2017 affidavit as I have already found it was received into evidence and the undertaking no longer applies. As for the 9 May 2016 affidavit, I am unable to determine on the evidence before me whether it was filed pursuant to an order or not. But even assuming it was filed voluntarily, I accept the plaintiff’s submission that the undertaking should apply. That being so, in the absence of proof that the affidavit was received into evidence, the implied undertaking applies.
[13]Bashour v Australia and New Zealand Banking Group Ltd [2017] FCA 163 per Tracey J
47 Wright’s financial statement dated 22 May 2017 (“SN-40”) was filed pursuant to the order of Cronin J on 1 May 2017.
48 Counsel for the defendant submitted the husband’s financial statement was also read into evidence. Counsel for the plaintiff argued the financial statement was in a different category to an affidavit. He noted that a discovered document read into evidence did not relieve parties from the implied undertaking citing Harman. The plaintiff argued the financial statement was subject a curial order and remained subject to the undertaking. When one looks at the financial statement, it comprises a form but the first page does describe it as an affidavit and there was a jurat clause completed by Wright before his solicitor. Consequently, in my view, it is also an affidavit which was compelled by curial order. The issue then is whether it too has been received into evidence. Counsel for the defendant referred to passages in the reasons referring to financial statements of a family trust and the financial agreement. The latter is the prenuptial agreement which was disputed by the parties. Nowhere in the reasons dated 30 May 2017 is there an express reference by Cronin J to the husband’s financial statement. Although it is listed in the outline of the case prepared for the hearing, the substantive hearing did not go ahead on 29 May 2017 because of the defendant’s adjournment application. On the state of the evidence before me, I am not satisfied the financial statement was received into evidence as contended for by the defendant. That being so, the implied undertaking remains in force in relation to this document such that the defendant is not permitted to refer to it in her proposed pleading.
Conclusion
49 I will direct the parties to file minutes of orders to reflect these reasons. Given the plaintiff has succeeded in opposing the defendant’s application to amend her defence and counterclaim in the form of Exhibit SN-17, costs should follow the event. Subject to hearing from the parties, I propose ordering the defendant pay the plaintiff’s costs of the application to be taxed on a standard basis, in default of agreement.
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Certificate
I certify that these 15 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 13 May 2019.
Dated: 13 May 2019
Associate to Her Honour Judge A Ryan
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