Battalis v Battalis

[2012] WASC 229

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BATTALIS -v- BATTALIS [2012] WASC 229

CORAM:   MASTER SANDERSON

HEARD:   20 JUNE 2012

DELIVERED          :   28 JUNE 2012

FILE NO/S:   CIV 3293 of 2011

BETWEEN:   SOTIRIOS TERRY ELIAS BATTALIS

MARIA XANTHIS
MICHAEL BATTALIS
Plaintiffs

AND

EVANGELOS ELIAS BATTALIS
First Defendant

ATHENEUM PTY LTD
Second Defendant

JOHN ATHANASIOU as Executor of the Will of ELIAS BATTALIS (dec)
Third Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiffs:     Mr J D Maclaurin

First Defendant             :     Mr A J Goldfinch

Second Defendant         :     Mr A J Goldfinch

Third Defendant           :     No appearance

Solicitors:

Plaintiffs:     Culshaw Miller

First Defendant             :     Stables Scott

Second Defendant         :     Stables Scott

Third Defendant           :     No appearance

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

Nil

1. MASTER SANDERSON:  This is a pleading summons.  The first and second defendants seek to strike out the plaintiffs' statement of claim.  For reasons which follow, the application should be dismissed with costs. 

2. The statement of claim pleads the plaintiffs and the first defendant are the surviving children of Elias and Chrissafina Batalis.  It is pleaded that by a Deed of Settlement dated 23 July 1979 a trust was created.  The second defendant is the trustee of that trust.  Paragraph 4 of the statement of claim pleads certain provisions of the Deed.  By way of example, cl 4(f) is in the following terms:

   By clauses 1(14) and 10 in effect that the Trustee shall not, when there is a Guardian, exercise the power to remove a person nominated in the Schedule to succeed as Guardian except by declaration in writing with the consent of the Guardian.

3. The way in which this paragraph is pleaded is the first complaint made by the first and second defendants.  It is said what must be pleaded is the overall effect of the Deed, not specific clauses.  With respect, there is nothing in this objection.  What the pleader has done is set out what is said to be the effect of the particular clauses referred to.  It would be poor pleading practice to set out the clauses themselves.  The pleader must alert the defendants to the clauses of the Deed which it is said are relevant.  That has been done.  If the first and second defendants say the clauses have a different meaning, they can plead in the defence to that effect.  The way par 4 is worded shows what particular provisions the plaintiffs say are relevant and what they say is the effect of those provisions.  There can be no valid complaint as to par 4. 

4. Paragraphs 5 and 6 fill in the narrative and are not complained of.  By par 7, reference is made to what is defined as 'the unstamped deed'.  This is said to be a Deed of Variation of the trust entered into on 19 November 2002.  The purported effect of the unstamped deed is pleaded.  By par 8, it is said there was a condition subsequent in the unstamped deed, which required the trustee to obtain an assessment of stamp duty payable on the deed not exceeding $20 and if that condition was not satisfied within six months of the date of the deed, then the deed would not have any effect. 

5. Paragraph 9 pleads the unstamped deed has not been assessed.  Paragraph 10 pleads the unstamped deed was not properly executed.  By par 11, it is pleaded the unstamped deed is invalid and of no effect. 

6. What is being alleged is perfectly plain.  First, it is said the condition subsequent in the unstamped deed has not been satisfied and therefore it is of no force and effect.  Secondly, it is alleged the unstamped deed was not properly executed.  The first and second defendants could be in no doubt as to what is alleged against them.  It is two perfectly simple points which clearly emerge from the pleading.

7. By par 12, it is said if the unstamped deed is valid and operational, it does not operate to remove the first‑named plaintiff as guardian or appointor in succession on the death of Elias Battalis.  That calls into question the proper interpretation of the terms of the deed.  Once again, there could be no doubt as to what is being alleged against the first and second defendants. 

8. Paragraph 13 pleads what is defined as 'the purported deed'.  This, it is said, is a purported deed of variation undated, but stamped 17 January 2003.  By par 14, the plaintiffs call into question whether the purported deed has been properly executed.  By par 15, they say the purported deed is invalid and of no effect.  There is only one possible reason why, on the plaintiffs' case, the purported deed would be of no force and effect - because it has not been properly executed.  The pleading is entirely clear.

9. By par 16, it is pleaded if the purported deed is effective, it does not have the effect of removing the first‑named plaintiff as guardian or appointor in succession on the death of the deceased.  In other words, it calls into question the proper interpretation of the purported deed.  The first and second defendants could be in no doubt as to the case they have to meet. 

10. By pars 17, 18, 19 and 20, the plaintiffs plead Elias Battalis died, the third defendant was appointed executor of the Will, probate of the Will was granted and, pursuant to the Will, Elias Battalis purported to appoint the first defendant as guardian and appointor of the trust.  By par 21, it is alleged the appointment in the Will was invalid and of no effect.  Clearly, what is raised is a question of the proper interpretation of the trust Deed and the effect of the Will of Elias Battalis.  The plaintiffs' case is quite clearly expressed. 

11. Complaint is made about two other matters.  First, it is said no case is put against the second defendant, yet relief is sought against the second defendant in the prayer for relief.  In my view, it is clear the second defendant as trustee of the trust must be a party to these proceedings.  It could not be otherwise.  Whether any relief is actually granted against the second defendant is beside the point.

12. Secondly, it is said there is a range of relief claimed against the first defendant which is inconsistent with the pleaded case.  For instance, by subpar (k), the plaintiffs seek an account from each of the first and second defendants.  It is said this relief does not follow from the pleaded case.

13. The relief granted after trial is a matter for the trial judge.  The prayer for relief signals what remedies the plaintiffs see as appropriate.  It does not necessarily follow these remedies will be granted.  In a case such as this, there is nothing to be gained from striking out prayers for relief when to do so would have no effect upon the case overall.

14. In my view, there is simply no merit in the first and second defendants' application.  As I have indicated, the application is dismissed with costs, such costs, including the reserved costs, to be taxed and paid forthwith.