Boase v Permanent Custodians Ltd
[2013] WASC 251
•4 JULY 2013
BOASE -v- PERMANENT CUSTODIANS LTD [2013] WASC 251
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 251 | |
| Case No: | CIV:2466/2012 | 12 JUNE 2013 | |
| Coram: | MASTER SANDERSON | 4/07/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | TIMOTHY BOASE as Trustee for the BOASE FAMILY TRUST JENNY LEE BOASE as Trustee for the BOASE FAMILY TRUST PERMANENT CUSTODIANS LTD ALAN BROOK ANELLE PTY LTD PROPELL NATIONAL VALUERS (WA) PTY LTD FINANCE COMPANY AUSTRALIA PTY LTD STEPHANIE HAMLING PHILIP BRUCE ADAMSON |
Catchwords: | Summary judgment Application by third and sixth defendants Statement of claim incomprehensible Turns on own facts |
Legislation: | Nil |
Case References: | Forsayth NL v Northern Gold NL (Unreported, WASC, Library No 940012, 20 January 1994) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
JENNY LEE BOASE as Trustee for the BOASE FAMILY TRUST
Second Plaintiff
AND
PERMANENT CUSTODIANS LTD
First Defendant
ALAN BROOK
Second Defendant
ANELLE PTY LTD
Third Defendant
PROPELL NATIONAL VALUERS (WA) PTY LTD
Fourth Defendant
FINANCE COMPANY AUSTRALIA PTY LTD
Fifth Defendant
STEPHANIE HAMLING
Sixth Defendant
PHILIP BRUCE ADAMSON
Seventh Defendant
Catchwords:
Summary judgment - Application by third and sixth defendants - Statement of claim incomprehensible - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : In person (Mr T Boase)
Second Plaintiff : In person (Mr T Boase)
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Mr J R Ludlow
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : Mr J R Ludlow
Seventh Defendant : No appearance
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Downings Legal
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : Downings Legal
Seventh Defendant : No appearance
Case(s) referred to in judgment(s):
Forsayth NL v Northern Gold NL (Unreported, WASC, Library No 940012, 20 January 1994)
(Page 4)
1 MASTER SANDERSON: By chamber summons filed 28 November 2012 the third and sixth defendants applied for summary judgment against the then plaintiff. After some delay the matter came on for hearing. I determined rather than enter summary judgment I should strike out the plaintiffs' statement of claim with leave to re-plead. I was not satisfied the statement of claim sufficiently articulated the then plaintiffs' cause of action. An amended statement of claim was filed on 9 May 2013. The original plaintiff was removed and three additional plaintiffs were added. Regrettably the amended statement of claim has not advanced the position to any extent.
2 In an application for summary judgment under O 16 of the Rules of the Supreme Court 1971 (WA) the defendant will succeed if it can demonstrate that there is no serious question to be tried upon any cause of action raised by the plaintiff. As was said by the Full Court in Forsayth NL v Northern Gold NL (Unreported, WASC, Library No 940012, 20 January 1994) it is not for the court to identify causes of action which are not pleaded but which the evidence might arguably support. The difficulty with this case is the amended statement of claim is incomprehensible. It runs to 84 paragraphs over 39 pages. While some material facts may be pleaded it is very difficult to separate these from evidence, submissions, statements of the law and a few asides thrown in for good measure. Counsel for the third and sixth defendants has distilled out what he believes to be the plaintiffs' causes of action. He is probably correct although I have reached that conclusion with some hesitation.
3 It is convenient first to detail why the third and sixth defendants say they are entitled to summary judgment. What follows is taken almost exclusively from submissions filed on behalf of the third and sixth defendants on 12 March 2013. It does not represent my conclusions - it is a summary of the third and sixth defendants' case.
4 The first plaintiff brought proceedings on his own behalf in the District Court of New South Wales against the third defendant. These proceedings were later transferred to this court. The first plaintiff's claim against the third defendant was based upon allegation that at all material times the third defendant:
1. acted as agent for TBoase Investments Pty Ltd (TBI) in relation to the settlement of certain properties in Thornlie;
(Page 5)
- 2. by its then employee, the sixth defendant, provided false statements to the first defendant as to TBI's and the first plaintiff's financial circumstances; and
3. was engaged in a conspiracy with TBI's mortgage broker, the fifth defendant and the seller of the Thornlie properties, to ensure that a loan was provided to TBI by unlawful means.
5 Following a mediation the first plaintiff settled his claim against the third defendant by way of a deed of release. He also consented to an order dismissing proceedings with no order as to costs and vacating all outstanding orders. A copy of the deed of release is found in various places in the affidavit material, and in particular as annexure SDH7 to the affidavit of Simon David Hubbard sworn 26 November 2012. It was subsequent to the parties entering into this deed the plaintiffs commenced proceedings against the third and sixth defendants.
6 It would seem the plaintiffs' claim to bring these proceedings as trustees for 'The Boase Family Trust'. Quite how that sits with the third, fourth and fifth plaintiffs appearing to sue in their capacity as beneficiaries of the trust is open to doubt. Nonetheless for the purposes of this application the third and sixth defendants accept the plaintiffs bring these proceedings on that basis. The plaintiffs allege and the third and sixth defendants also accept, again for the purposes of this application, at the relevant time the sixth defendant was employed by the third defendant.
7 The third and sixth defendants claim the plaintiffs' claim in these proceedings is based upon agency, false statement and conspiracy allegations which mirror precisely the allegations made in the earlier proceedings. In support of that proposition counsel referred to pars 7, 15, 19 - 23, 25, 43, 61 - 66, 70, 74 and 76 of the amended statement of claim. To give some idea of the difficulty occasioned by the form of the statement of claim I will quote pars 7 and 15. I could quote any one or more of the paragraphs because they all illustrate the same point. But reference to the first two mentioned paragraphs will suffice for present purposes:
7. PCL's servants or agents include the proposed seventh defendant Mr Phil Adamson (Mr Adamson) a mortgage broker employed by the fifth defendant; Finance Company Australia Pty Ltd (ACN 107 030 955) (FCA) formerly Centrepoint Finance WA Pty Ltd. Mr Adamson was a longstanding associate of Mr Rateb Jneid (Mr Jneid), the vendor and Director of R & Z Developments Pty
- Ltd (R&Z), of the Security Property. Mr Adamson conspired (tort of conspiracy is alleged) with R&Z and Mr Jneid and Stephanie Hamling (Ms Hamling), the sixth defendant, a then employee of Mr Jneid's settlement agent [sic], to ensure TBI obtained finance to complete the purchase of the Security Property.
- ...
15. The third defendant, 'Annelle Pty Ltd (at the time) trading as Shoalwater Settlements' (SWS) acted as R & Z and Mr Jneid's settlement agent. It also acted as TBI's settlement agent providing services for TBI's actual settlement agent 'Digital Settlement Services' (DSS). DSS declined to hold TBI's investors' deposits (the plaintiff's deposits) that TBI had collected from its investors (the plaintiff's deposits) in an interest bearing account. What SWS was willing to do, by its employee Ms Hamling, was conspire (tort of conspiracy and negligence are alleged) with Mr Adamson and Mr Jneid to ensure TBI obtained finance by, amongst other things, creating false records claiming SWS held large capital sums in its trust account on behalf of TBI and transmitting the false records to FCA and Mr Adamson so that he could process TBI's loan application to PCL and its mortgage insurer and it was those false records and false glowing endorsements of TBI and the Director's alleged experience in the property development industry that were provided by Mr Adamson without the Director of TBI's knowledge or consent that eventually resulted in PCL approving finance.
8 To read these two paragraphs is to understand the nature of the problem. In any event as I have indicated above I am prepared to proceed on the basis counsel has correctly understood the plaintiffs' claims. So far as I was able to understand submissions put by Mr Boase he appeared to confirm counsel had a correct understanding of how the claim was being put.
9 It is the third and sixth defendants' position that on a proper construction of the deed of release the plaintiffs are barred from bringing these proceedings. It is submitted the deed of release binds not only the first plaintiff but also the second plaintiff and the beneficiaries or objects of the Boase Family Trust by virtue of the definition of 'Timothy Boase' in cl 14. Under the terms of the deed Timothy Boase means 'Timothy Boase and any of his heirs, successors, executors, assigns, insurers or Related Entities'. The deed further defines 'Related Entities'. They are said to be:
[I]in relation to a Party, any entity which is related to that Party within the meaning of Section 50 of the Corporations Act 2001 or which is an economic entity (as defined in any approved Australian Accounting Standard) that is controlled by that Party.
(Page 7)
10 The Statement of Accounting Concepts 1 (8/90) (SAC 1) defines 'economic entity' to mean 'a group of entities comprising a controlling entity and one or more controlled entities operating together to achieve objectives consistent with those of the controlling entity'. It is the third and sixth defendants' position on a proper construction of SAC 1 the first plaintiff is (or in conjunction with the second plaintiff is) the controlling entity of the Boase Family Trust and the equitable interests of the beneficiaries or objects of the Boase Family Trust in the trust property of the Boase Family Trust are the relevant controlled entities with the consequence the Boase Family Trust as a whole is an economic entity.
11 Counsel went on to submit in determining whether the first plaintiff has the necessary capacity to be, or be in conjunction with the second plaintiff, a 'controlling entity', it is necessary to bear in mind for the purposes of SAC 1 'control' means 'the capacity of an entity to dominate decision-making, directly or indirectly, in relation to' the beneficiaries or objects of the Boase Family Trust. Accordingly, it was submitted the question is not whether the first plaintiff controls, but whether he has the capacity to control and this clearly must be so as he is one of only two trustees.
12 It was further submitted that by the deed of release the first plaintiff, the second plaintiff and the beneficiaries or objects of the Boase Family Trust release not only the third defendant but also the sixth defendant. The deed of release includes within the definition of Anelle Pty Ltd 'any of its past or future officers [or] employees', such as the sixth defendant.
13 In my view there is a potential flaw in this reasoning. It is based on the assumption the first plaintiff 'controls' or 'has the capacity to control' the Boase Family Trust. On the assumption there are two trustees it is by no means clear the first plaintiff actually does control the Boase Family Trust. It may be as a matter of fact he does - his wife, the second plaintiff, may play no role in actually determining how the Trust is operated. But that is a question of fact which cannot be determined independent of a trial of the action. It would seem to me on this basis the plaintiffs ought be permitted to proceed with their action.
14 The third and sixth defendants raised a further point. They submitted the effect of the consent judgment was the first plaintiff, his privies, the beneficiaries or objects of the Boase Family Trust, and therefore also their privy, the second plaintiff, are all barred from bringing and prosecuting these proceedings against the third defendant. It was submitted, correctly in my view, for the purpose of determining whether subsequent
(Page 8)
- proceedings would lead to the unacceptable circumstance of conflicting judgments, orders made by consent may be considered to be matters necessarily decided.
15 The third and sixth defendants repeated the claim the plaintiffs founded their claims in this action upon agency, false statement and conspiracy allegations. These allegations were recorded in Recital G(d) of the deed of release as having been made by the first plaintiff in his claim against the third defendant in the earlier proceedings. As recorded in Recital K and cl 6 of the deed of release the parties to the earlier proceedings other than the first plaintiff do not admit liability to the first plaintiff in respect of the first plaintiff's allegations against them in the earlier proceedings. Clause 4.2 gave them the right to plead the deed of release in bar to any action or proceedings commenced by 'Timothy Boase' (as defined in the deed of release) against them in relation to any matter whatsoever subject to one irrelevant exception. The consent orders were made as required by cl 3 of the deed of release.
16 Counsel submitted the consent order must be regarded as indicating the first plaintiff had failed against the third defendant in the earlier proceedings in respect of all issues of liability on which he bore the burden of proof. As any judgment in his favour in these proceedings would be founded upon (at least) the agency, false statement and conspiracy allegations it follows that any such judgment would clash with the consent order.
17 In my view that point is arguable. Recital K specifically says the settlement of the action is made 'without any admission of liability' by any party. To suggest entering into the deed is effectively conceding the claim is at odds with that statement and inconsistent with the whole tenor of the deed. The first plaintiff's allegations were never tested. He may or may not have succeeded in his action. What the deed did was ensure the parties walked away from the proceedings and the consent order tidied up that situation. While it is not for me to finally determine this question I am satisfied the submissions put by counsel for the third and sixth defendants while arguable are not such as to destroy the plaintiffs' position.
18 In my view the application for summary judgment on the part of the third and sixth defendants ought be dismissed. The costs of the application including reserved costs will be costs in the cause.
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