Aronis and Anor v Aronis

Case [2020] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

Aronis & Anor v Aronis [2020] QCA 147

PARTIES:

THEODORA LOULA ARONIS AS EXECUTOR OF THE ESTATE OF PETER GEORGE ARONIS (DECEASED)
(first appellant)
THEODORA LOULA ARONIS
(second appellant)
v
MATTY ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED)
(respondent)

FILE NO/S:

Appeal No 10524 of 2019
SC No 12875 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – unreported, 2 September 2019 (Jackson J)

DELIVERED ON:

Date of Orders: 19 February 2020
Date of Publication of Reasons: 7 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2020

JUDGES:

Sofronoff P and Fraser and Mullins JJA

ORDERS:

Orders made 19 February 2020:

1.   Appeal dismissed.

2.   The appellant to pay the respondent's costs on a standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – GENERALLY – where the appellant in a proceeding commenced in 2015 claims declarations for constructive trusts over various properties as a result of alleged breaches by her husband’s parents of oral agreements and representations made in 1979, 1991 and 1993 and the conduct of her husband and her in reliance on those agreements and representations – where her mother-in-law swore an affidavit in relation to the purchases of the properties and responding to the statement of claim – where the mother-in-law died and her daughter as her executor was substituted as the defendant in the proceeding – where almost four years after the proceeding commenced, the appellant applied for leave to amend the claim and the statement of claim to include claims for resulting trusts over the properties that were the subject of the constructive trust claims and a property that was purchased in 1979 in the respondent’s name – whether there was potential prejudice to the respondent in not being able to obtain the deceased’s evidence relevant to the resulting trust claims – whether the primary judge erred in not granting leave to amend

Uniform Civil Procedure Rules 1999 (Qld), r 5

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

COUNSEL:

G R Allan for the appellant
S J Webster for the respondent

SOLICITORS:

Walt Allan for the appellant
Cooper Grace Ward for respondent

  1. SOFRONOFF P:  I agree with the reasons of Mullins JA.

  2. FRASER JA:  I agree with the reasons for judgment of Mullins JA.

  3. MULLINS JA:  The appellant who sues as the executor of her late husband’s estate and in her personal capacity is the plaintiff in Supreme Court proceeding number 12875 of 2015.  The appellant was granted leave on 2 September 2019 by the learned primary judge to amend the amended claim and amended statement of claim in accordance with the reasons for the decision given on the same date.

  4. As the leave did not extend to all amendments sought…

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AGLC
Aronis v Aronis [2020] QCA 147
Case
[2020] QCA 147
Decision Date

CaseChat Overview and Summary

In the case of Aronis and Anor v Aronis, the court was called upon to determine whether the appellant, Theodora Aronis, should be granted leave to amend her statement of claim in a proceeding that she had commenced in 2015 against her sister-in-law, Matina Aronis. The appellant sought to add claims for declarations of resulting trusts over several properties as well as a property purchased in 1979 in the respondent's name. This application was made after the death of the original defendant, Maria Aronis, and the substitution of Matina as the executor of Maria's estate and the sole beneficiary under Maria's will. The central issue before the court was whether there was potential prejudice to the respondent if the court did not allow the amendments, particularly given the death of Maria, the original defendant, who had provided sworn evidence relevant to the resulting trust claims. The court also needed to determine whether the primary judge had erred in refusing leave to amend the statement of claim.

The court found that the primary judge had not erred in refusing leave to amend the statement of claim. The appellant's application to amend was made almost four years after the proceeding had commenced and the reason for the proposed amendments was only briefly explained. The court noted that the claims for resulting trusts were based on the compilation of the appellant's original disclosure of documents, not otherwise. The court also highlighted that the claims for resulting trusts largely related to dealings that occurred before 1979, which was the earliest date to which the respondent's expert evidence had been directed. Given these circumstances, the court concluded that there was potential prejudice to the respondent in not being able to obtain Maria's evidence relevant to the resulting trust claims. As such, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs on a standard basis.

Orders

Orders of the court

Orders made 19 February 2020:

1. Appeal dismissed.

2. The appellant to pay the respondent's costs on a standard basis.

Background

Background to the litigation

At the hearing of the appeal, the court dismissed the appeal and ordered the appellant to pay the respondent’s costs on a standard basis. These are my reasons for the making of those orders.Background to the dispute The background to the dispute between family members is common ground. It is set out in paragraphs 5 and 6 of the appellant’s amended outline of argument as follows:“5.Between 1959 and July 1989, George Aronis (George) and Maria Aronis (Maria) acquired seven (7) properties in Brisbane. George died on 25 September 1993. A number of the properties are used for retail or commercial purposes and have periodically been leased for reward to third parties since they were acquired. When George died, Maria became the registered owner of the properties. After Maria died on 29 October 2016, the respondent, Matina Aronis (Matina, also known as ‘Matty’), was granted probate as sole executor and trustee of a will executed by Maria on 5 September 2016 (Maria’s 2016 will) and the properties vested in her. Matina is the sole residuary beneficiary under Maria’s 2016 will.6.Theodora Aronis (Theodora) sues the respondent in two (2) capacities, as executor of her late husband’s estate, and in her personal capacity. Theodora is Matina’s sister-in-law. Theodora was married to Peter Aronis (Peter) from March 1979 until his death on 5 August 2015. On 9 December 2015, Theodora was granted probate as sole executor and trustee of Peter’s last will dated 30 May 1991.” (footnotes omitted) Where appropriate, I will refer to the parties by their given names for ease of reference. The amended claim and amended statement of claim filed on 23 December 2016 was before the primary judge. The appellant claims declarations for constructive trusts over the seven properties based on alleged breaches of oral agreements or representations reached or made in 1979, 1991 and 1993 and the conduct of Peter and her in reliance on those agreements or representations.The proceeding The appellant commenced this proceeding on 18 December 2015, when Maria was still alive and she was named as the defendant. Maria was then 92 years old. She swore an affidavit on 1 July 2016 (Maria’s affidavit) that responded to the allegations in the statement of claim. The proceeding was placed on the Case Flow Review list. On 6 October 2016 directions were made about requests for particulars, disclosure and filing and serving of amended pleadings. Directions were also made in relation to expert evidence. By order made on 21 December 2016, Matty in her capacity as executor of Maria’s estate was substituted as the defendant in the proceeding and the timetable for requests for particulars, disclosure, amended pleadings and expert evidence was amended. The appellant filed the amended claim and amended statement of claim on 23 December 2016 that incorporated the change in the defendant, but otherwise did not make any substantial changes to the causes of action. On 10 May 2017, the appellant’s solicitors advised the respondent’s solicitors that the appellant did not intend to obtain expert evidence. The appellant’s solicitors sent a further letter on 18 May 2017 advising the appellant did not intend to amend the statement of claim. The appellant’s solicitors confirmed by email on 7 August 2017 that the appellant did not require expert evidence for the purpose of the proceeding and any expert evidence would be in response to the respondent’s expert evidence “presumably for the counterclaim”. Orders were made on 23 August 2017 that set a timetable for further steps in the proceeding, including a mediation, and for the respondent to deliver to the appellant her expert evidence by 31 October 2017 and for the appellant to deliver to the respondent her expert evidence limited to issues raised by the respondent’s counterclaim by 28 November 2017.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant is seeking to add claims for declarations for resulting trusts in respect of four properties referred to in the statement of claim as 99 Burn Street, Lots 5 and 6/17 Hayling Street and 74 Vulture Street. These are alternative claims to the existing claims in respect of those properties for declarations of constructive trusts based on the alleged oral agreements or representations. In addition, the appellant sought to add alternative claims of equitable charges in her favour over the properties of 99 Burn Street and 74 Vulture Street. The appellant also sought to add a claim in respect of a property that is not the subject of the constructive trust claim. This property referred to as the Whittaker Street property is registered in the respondent’s name as the owner of the estate in fee simple in her personal capacity and was purchased in 1979.The primary judge’s decision The primary judge identified six categories of amendments sought by the appellant. The primary judge allowed the amendments that fell within the first and second categories. The third category encompassed the resulting trust and equitable charges claims in respect of the properties that were already the subject of the statement of claim. The claim in respect of Whittaker Street was included in the fourth category. The primary judge refused leave to make the amendments in the third category and in the fourth category relating to Whittaker Street. The primary judge did allow the claim included in the fourth category in respect of the property at 24 Selhurst Street that was in a different category. The Selhurst Street property had been rented and the claim was based on co-ownership between Maria and the appellant and seeking an adjustment between the parties for alleged overpayment of net rent to Maria of $26,355.84. The primary judge refused leave to make the amendments in the fifth category that were referable to the disallowed claims in respect of resulting trusts, but did give leave to the appellant to replead in respect of any allegations of material fact that were included in the fifth category that supported the allegation of constructive trust. The sixth category concerned an additional claim for an account in relation to income from properties that was based on allegations already pleaded in the statement of claim and the amendments were allowed. After reciting the history of the proceeding, the primary judge noted that the application was brought in circumstances where the reason for the proposed amendments was only briefly explained by the appellant’s solicitor in terms of considering the possibility of including a claim for declarations of resulting trusts and/or other equitable relief after taking possession of the appellant’s original disclosed documents and completing the task of scanning them by 5 April 2019. (Mr van der Walt deposed in his affidavit filed on 16 July 2019 to instructing counsel in April 2019 to consider amending the claim and statement of claim to include a claim for declarations of resulting trusts and/or other equitable relief.) The primary judge observed in the reasons:“As I was informed by the [appellant] through counsel’s submissions in the course of this hearing, the claims for resulting trusts are based on compilation of the documents that form the [appellant’s] original disclosure of documents in the proceeding, not otherwise. Nevertheless, as will become apparent, the claims for resulting trusts, which are proposed to be added, in large measure relate to dealings that occurred before 1979, which is the earliest date to which the [respondent’s] present expert evidence has been directed.”

Ratio Decidendi

Legal Principle Established

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