Bremner v Bremner

Case [2020] QSC 374

SUPREME COURT OF QUEENSLAND

CITATION:

Bremner v Bremner & Ors [2020] QSC 374

PARTIES:

ANDREW CRAIG BREMNER
(plaintiff)

v

FAYE LYNETTE BREMNER
(first defendant)
KIM ALEXANDER BREMNER
(second defendant)
JANET ISABEL BREMNER
(third defendant)
DION ROSS BREMNER
(fourth defendant)
VITONGA EAST FARMS PTY LTD ACN 003 206 531
IN ITS OWN CAPACITY AND AS TRUSTEE OF THE BREMNER FAMILY TRUST
(fifth defendant)

FILE NO:

BS 11326 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application to strike out pleadings

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

15 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2020

JUDGE:

Applegarth J

ORDERS:

1.   The second further amended statement of claim filed
6 November 2020 be struck out in its entirety.

2.   The plaintiff have leave to amend his pleading.

3.    Any further amended pleading may be drawn and settled in a form which does not require the plaintiff to strike through paragraphs of the pleading, in accordance with rule 382.

4.    The plaintiff have leave to amend the Claim so that the claims made in it accord with the relief claimed in the newly amended pleading.

5.   The parties attempt to agree:

(a)      a date for the filing and service of the aforesaid documents;

(b)      dates for an amended defence and a reply to the amended defence to be filed and served;

(c)      directions for mediation or some other form of alternative dispute resolution; and

(d)      trial directions if the matter is not resolved by a certain date.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff and defendants were together involved in a family farming business – where the plaintiff pleads that the business was conducted as a joint relationship, joint enterprise or joint venture for the benefit of the family as a whole, and that upon his parents’ passing, the business assets were to be owned by the plaintiff and his two brothers in equal shares – where the plaintiff pleads that following his father’s death, his mother and brother have unconscionably denied the plaintiff’s interest in the family business and its assets – where the plaintiff seeks a declaration that the business assets are held on a constructive trust – where the defendants apply to strike out the plaintiff’s pleading – where the defendants submit that the pleading is not confined to the necessary material facts and that the relief sought is not consistent with the facts alleged – whether the pleading is defective – whether the pleading should be struck out

Uniform Civil Procedure Rules 1999 (Qld), r 149, r 171

Banque Commerciale S.A. (en liq) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11, cited
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, cited
Cetojevic v Cetojevic [2007] NSWCA 33, cited
Coco v Ord Minnett Ltd [2012] QSC 324, cited
Green v Green (1989) 17 NSWLR 343, cited
Luxton v Vines (1952)…

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Details
AGLC
Bremner v Bremner [2020] QSC 374
Case
[2020] QSC 374
Decision Date

CaseChat Overview and Summary

In the case of Bremner v Bremner, the plaintiff, Andrew, sought a declaration that the assets of a family farming business were held on a constructive trust, following the deaths of his parents. The defendants, Andrew's mother and brother, applied to strike out the plaintiff's pleading, alleging it was defective as it was not confined to the necessary material facts and that the relief sought was inconsistent with the facts alleged. The court had to determine whether the pleading was defective and, if so, whether the discretion to strike out should be exercised.

The court considered the nature of the pleading and the conduct alleged in it. The defendants argued that certain subparagraphs in the pleading did not demonstrate the existence of the joint venture. However, the court found that the conduct pleaded, such as the taking of drawings and payment of expenses, could support the inference of a joint venture. Although the pleading could have been better structured, it sufficiently informed the defendants of the plaintiff's case and the matters relied upon to support the inference of the joint venture.

The court declined to exercise its discretion to strike out the subparagraphs complained of. However, the court did find that the entire pleading should be struck out in its entirety. The court found that the current pleading did not accord with the relief claimed, and it required the plaintiff to strike through paragraphs of the pleading. The court granted the plaintiff leave to amend his pleading and directed the parties to attempt to agree on a date for filing and serving the amended documents, as well as dates for an amended defence and a reply to the amended defence. The court also suggested mediation or other forms of alternative dispute resolution, with trial directions to be set if the matter was not resolved by a certain date.

Orders

Orders of the court

1. The second further amended statement of claim filed

6 November 2020 be struck out in its entirety.

2. The plaintiff have leave to amend his pleading.

3. Any further amended pleading may be drawn and settled in a form which does not require the plaintiff to strike through paragraphs of the pleading, in accordance with rule 382.

4. The plaintiff have leave to amend the Claim so that the claims made in it accord with the relief claimed in the newly amended pleading.

5. The parties attempt to agree:

(a) a date for the filing and service of the aforesaid documents;

(b) dates for an amended defence and a reply to the amended defence to be filed and served;

(c) directions for mediation or some other form of alternative dispute resolution; and

(d) trial directions if the matter is not resolved by a certain date.

Background

Background to the litigation

The application raises two general issues:(a)Is the pleading defective in either of the two respects alleged by the defendants?(b)If so, should the discretion to strike out be exercised and, if so, how?Background The plaintiff is one of three sons in a farming family. The late Ian Ross Bremner and his wife, Faye, along with their three sons are said to have operated a family farming business through partnerships, companies and trusts since at least 1977. It is convenient to refer, as the pleading does, to the parties by their first names. The plaintiff, Andrew, left the farm at the age of 15, having been encouraged by his father to obtain a trade qualification. He qualified as a motor mechanic and returned to the farming business where he worked for over 16 years. He complains that in recent times his mother and his older brother have taken steps to deny his interest in the joint venture, purported to remove him as a director of the corporate trustee which operates the farming business, and have purported to require him to leave the farm unless he agrees to his older brother’s demand to sign documents stating that he is a mere employee. The plaintiff’s older brother, Kim, has lived and worked on the family property. He is married to the third defendant, Janet. The youngest brother, Dion, left the farm to work as a missionary. While Dion has not been involved in the day to day running of the family business, his work as a missionary is said to be important to Faye and Kim, who are Christians and consider Dion’s missionary work to be important and to benefit the family. The historic ownership of different farming properties and other assets such as water allocations, and the conduct of a family trust which has carried on the family farming business comes with its complexities. The plaintiff pleads that the fifth defendant (“Vitonga”), as trustee of the Bremner Family Trust is the entity through which the family has carried on the family farming business known as Bremner Farms. The various assets pleaded in paragraphs 2 to 19 of the pleading are collectively referred to as the “Bremner Farms Joint Venture Assets”. The essence of the plaintiff’s case is that since at least 1977 the family, through partnerships, companies and trusts, has conducted a family farming business:(a)by utilising the assets and property which from time to time comprised the “Bremner Farms Joint Venture Assets”;(b)in the form of a joint relationship, joint enterprise or joint venture founded on a relationship of mutual trust, confidence and assistance;(c)by the family, from time to time performing diverse activities for the advancement of the family’s financial and other interests; and(d)with a view to mutual profit.By reason of that conduct (which is further pleaded in paragraph 21 of the pleading), a joint relationship, joint enterprise, or a joint venture is said to exist between the parties. Paragraph 21 of the plaintiff’s pleading, to which the defendants directed specific complaints, consists of a number of subparagraphs which are pleaded to be conduct which “evidences the existence of the Bremner Farms Joint Venture, and in the further alternative, from which the Bremner Farms Joint Venture is inferred”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These subparagraphs allege that relevant family members have received drawings and other payments from the fifth defendant as trustee of the Bremner Family Trust and that the trustee has paid certain expenses on their behalf “at such times as they have resided near and worked in the Bremner Farms Joint Venture”. The defendants complain that these matters do not demonstrate the existence of the alleged joint venture. They are said to be not probative of its existence. I accept that this conduct may be explained on some other basis if, for example, drawings are accounted for on some other basis. However, as a matter of pleading, rather than decision at trial, the conduct in question seems capable of supporting, along with other matters, the inference which the plaintiff contends for. The taking of drawings and the payment of expenses is capable of supporting the inference that the joint venture existed. The fact that it is capable of other explanations is not a reason as to why the plaintiff should not be entitled to rely upon it, along with other matters, in support of the conclusion that the joint venture alleged by him existed.Conclusion in relation to parts of paragraph 21 The matters pleaded in paragraphs 20 and 21 might have been better structured so that the cart (the “Bremner Farms Joint Venture”) did not come before the horse (or horses). This would have avoided the problem of some subparagraphs of paragraph 21 using the definition. However, these matters do not justify my exercising the discretion to strike out most of paragraph 21. Its subparagraphs sufficiently identify the matters upon which the plaintiff relies to support the inference that there was the alleged joint venture. They perform the essential function of a pleading of informing the defendants of the plaintiff’s case and the matters which are relied upon to support the inference that the joint venture existed. I decline to exercise my discretion to strike out the subparagraphs complained of. The Claim and the prayer for relief The application filed on 23 October 2020 sought orders that paragraphs 2 to 4, 6 and 10 to 12 of the Claim be struck out and that the corresponding paragraphs in the prayer for relief in the pleading be struck out. The plaintiff’s pleading was further amended in the form of the second further amended statement of claim filed on 6 November 2020. This resulted in paragraph 7 of the prayer for relief being struck through. The prayer for relief in the current pleading claims the following relief:“1.A declaration of the existence of the Bremner Farms Joint Venture as pleaded in the statement of claim.2.A declaration that the Bremner Farms Joint Venture Assets are held on constructive trust for Faye, Kim, Andrew and Dion as participants in the Bremner Farm Joint Venture.3.An order that Kim and Janet transfer whatever of the Bremner Farms Joint Venture Assets are held in their name to Faye.4.A declaration that, upon the conveyance of the Bremner Farms Joint Venture Assets to Faye, Faye holds those assets on trust for herself, Kim, Andrew and Dion.5.A declaration that Andrew has a caveatable interest in the Bremner Farms Joint Venture Assets.6.An order that Faye, Kim and Janet account for the draws they have taken made from the Bremner Family Trust.7.An order that Faye, Kim and Janet repay to Vitonga any money taken from the Bremner Family Trust in excess of their equitable entitlements.8.A declaration that the shares in Vitonga constitute property of the Bremner Farms Joint Venture.9.A declaration that Andrew has an equitable interest in the shares of Vitonga.10.An order that Andrew is entitled to be registered as a shareholder of Vitonga.11.An order that Faye, Kim and Janet do all such things as are necessary to give effect to the above orders.12.Further or in the alternative, an order that a statutory trustee be appointed to sell the Bremner Farm Joint Venture Assets pursuant to s 38 of the Property Law Act 1974 (Qld) with the proceeds of the sale to be paid into court pending the account referred in paragraph 6 of this statement of claim.13.Such further or other relief as this Honourable Court sees fit.14.Costs.”

Ratio Decidendi

Legal Principle Established

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