Bride v Stewart
[2001] WASCA 407
•13 DECEMBER 2001
BRIDE & ANOR -v- STEWART [2001] WASCA 407
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 407 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:158/1997 | 16 NOVEMBER 2001 | |
| Coram: | WALLWORK J HASLUCK J OLSSON AUJ | 13/12/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | EDWARD JAMES BRIDE WENDY MARGARET BRIDE as Trustees of the PINWERNYING FAMILY TRUST BRYAN GUTHRIE STEWART |
Catchwords: | Appeal against summary judgment and issue of joinder Turns on own facts |
Legislation: | Nil |
Case References: | Bride & Anor v Hammond Fitzgerald and King (a firm), unreported; SCt of WA (Scott J); Library No 930303; 6 May 1993 Bride & Anor v KMG Hungerfords, unreported; SCt of WA (Murray J); Library No 8903; 10 June 1991 Bride & Anor v Stewart; unreported; SCt of WA; Library No 970419; 22 August 1997 Bride v Peat Marwick Mitchell, unreported; FCt SCt of WA; Library No 960565; 25 September 1996 Bride v Stewart [1999] WASCA 116 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Bride v Australian Bank Ltd [2000] WASC 116 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BRIDE & ANOR -v- STEWART [2001] WASCA 407 CORAM : WALLWORK J
- HASLUCK J
OLSSON AUJ
- WENDY MARGARET BRIDE as Trustees of the PINWERNYING FAMILY TRUST
Appellants (Plaintiffs)
AND
BRYAN GUTHRIE STEWART
Respondent (Defendant)
Catchwords:
Appeal against summary judgment and issue of joinder - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed in part
(Page 2)
Category: B
Representation:
Counsel:
Appellants (Plaintiffs) : In person (Mr E J Bride)
Respondent (Defendant) : Mr S R Boyle
Solicitors:
Appellants (Plaintiffs) : In person (Mr E J Bride)
Respondent (Defendant) : Clayton Utz
Case(s) referred to in judgment(s):
Bride & Anor v Hammond Fitzgerald and King (a firm), unreported; SCt of WA (Scott J); Library No 930303; 6 May 1993
Bride & Anor v KMG Hungerfords, unreported; SCt of WA (Murray J); Library No 8903; 10 June 1991
Bride & Anor v Stewart; unreported; SCt of WA; Library No 970419; 22 August 1997
Bride v Peat Marwick Mitchell, unreported; FCt SCt of WA; Library No 960565; 25 September 1996
Bride v Stewart [1999] WASCA 116
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Case(s) also cited:
Bride v Australian Bank Ltd [2000] WASC 116
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Olsson AUJ and to the orders proposed by his Honour.
2 There is nothing I wish to add.
3 HASLUCK J: I agree with the reasons for judgment of Olsson AUJ and with the orders proposed by his Honour.
4 OLSSON AUJ: This matter has a long, convoluted and unhappy history.
5 The factual background giving rise to it is set out at length in the judgment of Murray J in Edward James Bride and Wendy Margaret Bride as Trustees for the Pinwernying Family Trust v KMG Hungerfords, unreported; SCt of WA (Murray J); Library No 8903; 10 June 1991 and the judgment of Scott J in Edward James Bride and Wendy Margaret Bride as Trustees for the Pinwernying Family Trust v Hammond Fitzgerald and King (a firm), unreported; SCt of WA; Library No 930303; 6 May 1993.
6 In the present proceedings the same plaintiffs (appellants before this Court) sued the respondent for damages. They alleged that they were the owners of a business and plant, machinery and stock used in connection with it at Katanning. They further asserted that they were the owners of certain parcels of land. By a statement of claim filed by them, the appellants contend that, in the circumstances referred to in the above judgments, due to the wrongful conduct of the respondent, they lost the business, assets and land referred to. They claim damages for those losses.
7 It should be recorded that the action was originally commenced in the Federal Court of Australia, at some time in 1988, which does not readily appear. At that stage, the respective applicants were shown as Edward James Bride, Wendy Margaret Bride and Pinwernying Family Trust [sic]. This succeeded an earlier action (No 62 of 1987) brought by the two personal parties against the respondent in the same Court, which had been dismissed on the express basis that the cause of action was a chose in action vested in the trustee in bankruptcy of those parties and that they, accordingly, had no standing in relation to it. Two separate entities, Bride Foods Pty Ltd and Swan Stock Foods Pty Ltd were added as applicants on 15 February 1989.
8 Following publication of reasons for decision by French J in the Federal Court in this action on 25 October 1989, in which he noted that
(Page 4)
- the intention of the plaintiffs in the 1988 proceedings was to sue in their capacities as trustees of the Pinwernying Family Trust, steps were taken to amend the title to indicate that situation. The original statement of claim was struck out, but replaced by a revised pleading.
9 At some time in 1990 (once again the precise date does not readily appear from the material before the Full Court) the proceedings were transferred to this Court, where they were redesignated CIV 2041 of 1990.
10 That action was originally listed for hearing in 1993, together with the claim against Hammond, Fitzgerald and King. However, the trial of these proceedings could not proceed at that time, because the respondent had, at that stage, returned to Scotland. It was said that his solicitor had no current instructions.
11 On 12 August 1997, two separate applications came before a Master. One was an application by the plaintiffs to be joined as co-plaintiffs in their personal capacities or, as they expressed it, to be reinstated in those capacities. The other was an application, on behalf of the respondent, pursuant to O 16, for summary judgment.
12 In reasons published by him (Bride & Anor v Stewart; unreported; SCt of WA; Library No 970419; 22 August 1997) the Master concluded that, having regard to the reasoning of Heenan J (concurred in by Franklyn and Wallwork JJ) in Bride v Peat Marwick Mitchell, unreported; FCt SCt of WA; Library No 960565; 25 September 1996, the application for joinder was foredoomed to failure. He therefore dismissed it.
13 The learned Master further concluded that, having regard to the content of the respective judgments of Murray and Scott JJ, above referred to, the issues sought to be ventilated against the present respondent were also bound to fail, because both Judges had found that the relevant business and assets had been owned by the plaintiffs in their personal capacities (trading in partnership) and had not been owned by them in their capacity as trustees of the Pinwernying Family Trust. Accordingly, he ordered that the claim be struck out and that judgment be entered for the respondent.
14 On 3 October 1997 the plaintiffs filed an originating motion for leave to appeal against the decision of the learned Master. A document titled "Notice of Appeal" was lodged at the same time, although someone has written the word "DRAFT" in biro in front of that title.
(Page 5)
15 What occurred thereafter is set out in some detail in an earlier judgment of the Full Court in this action (Bride v Stewart [1999] WASCA 116).
16 Suffice to say that nothing seems to have happened for about two years, after which the plaintiffs presented an application for leave to appeal against the Master's orders and that the action be restored to the civil list for expedited trial.
17 The matter came before the Full Court on more than one occasion.
18 Eventually, on 9 August 1999, the Full Court pointed out that the application for leave was misconceived. It made the point that the relief required was, more appropriately, an extension of time pursuant to O 63 r 4(1); and noted that the explanation for the delay seemed to be an oversight on the part of the applicants, because they had been overwhelmed by the extensive litigation in which they had been involved.
19 At that time the Full Court was not prepared to grant an extension of time, because the respondent was, apparently then not in a position to respond to any application of that nature. The Full Court dismissed the application for leave, but granted the plaintiffs leave to bring a separate O 63 application for extension of time on the same papers, supplemented as desired.
20 The matter was relisted before the Full Court on 18 June 2001 and, after considerable debate, adjourned to enable the plaintiffs to file an affidavit explaining the reasons for the delay which had occurred.
21 Eventually, on 15 August 2001, the Full Court granted the plaintiffs the extension of time sought. Application was, on 21 August 2001, made to list the appeal for hearing.
22 The grounds of appeal now relied upon by the appellants are those originally placed on file on 3 October 1997. They read as follows:
"THE GROUNDS OF APPEAL ARE AS FOLLOWS:
1 .. The Master erred in fact in that the Plaintiffs [sic] application to 'Reinstate Edward James Bride and Wendy Margaret Bride' as Plaintiffs was to formalise the action back to the actions [sic] original status and heading.
2 .. The Master erred in fact in that at no time ever was the Plaintiffs [sic] 'Application to Reinstate' an application
(Page 6)
- 'To Join' Edward James Bride and Wendy Margaret Bride 'As New Parties' to the action.
- 3 .. The Master erred in Law and Fact in that the application by the Plaintiffs in Bride vs Peat Marwick Mitchell was a 'Misconceived Application' to 'Join E J and W M Bride as Plaintiffs' and to 'Plead the Alternative' as to the ownership and conduct of the business 'Oat Milling of Katanning'.
4 .. The Master erred in Fact and missed the crucial point of the Plaintiffs [sic] "Application to Reinstate E J and W M Bride' in that it was French J of The Federal Court who on the 25th October 1989 'Changed the Description of The Plaintiffs' to read, 'E J and W M Bride as Trustees of The Pinwernying Family Trust'. Edward James Bride and Wendy Margaret Bride have from day one been Plaintiffs to the action in their own right but not described as such on the heading due to the orders of French J.
5 .. The Master erred in Law in 'Ordering Summary Judgment' for the Defendant in that The Full Court of The Supreme Court on the 21st September 1995 in this action and related Appeal No FUL 202 of 1993 ordered and determined in the hearing that:-
a/. At page 16 of the Judgment, Franklyn J. I can point to one very simple difference just looking at your purported grounds of Appeal. sic.
b/. At page 25 of the Judgment, Pidgeon J. All right, Mr Bride, this is the point. ---- Your claim is not to be dismissed. sic ----
6 .. The Master erred in Law in that it is not possible to order Summary Judgment and 'Enter Judgment for the Defendant' when there are outstanding causes of action available to 'Edward James Bride and Wendy Margaret Bride in their capacity as Trustees of The Pinwernying Family Trust' against the Defendant, yet to be tried and determined.
(Page 7)
1 .. That, this Honourable Courts orders that the Trial of this Action be referred to the Judge in Charge of Civil Listings for hearing.
2 .. That the hearing of this action be listed to be heard on and at the first possible and available date.
3 .. That the Respondent pay to the Appellants all the costs of the hearing before Master Sanderson and this Appeal, forthwith."
23 It is to be noted that the issues now arising for consideration were the subject of comment by Ipp J in his reasons in Bride v Stewart [1999] WASCA 116, referred to above.
24 As to the joinder (or, as they would have it, "the re-instatement") of the appellants in their personal capacity, he drew attention to what fell from Heenan J in Bride v Peat Marwick Mitchell (supra) concerning a somewhat similar application which arose in that case.
25 The latter was there speaking in the context that the applicants (as individuals) had been declared bankrupt on 6 September 1984. Their rights in regard to their personal assets had vested in their trustee as of that date.
26 As these proceedings commenced in 1988, it follows that, at that time, the appellants had no standing to sue for the loss of assets owned by them personally. As earlier recited, a prior attempt to do so had been abortive. Whilst it is true that, on 13 January 1995, their trustee in bankruptcy assigned to them personally any rights of cause of action of their bankrupt estate against the respondent, that assignment did not (and could not) operate retrospectively.
27 As Heenan J said in Peat Marwick Mitchell (supra):
"It was not until 13 January 1995 that the appellants obtained an assignment of the relevant chose in action from their trustee in bankruptcy. The plain, inescapable, fact is that at the date of issue of each of the writs they were not entitled to bring the present actions in their personal capacity. As the deed of assignment has no retrospective effect, the writs, if issued by
(Page 8)
- the appellants in their personal capacity, would have been set aside because the appellants had no standing to sue."
28 The decision of the Full Court in that case therefore forecloses the present joinder issue.
29 As to this, it avails the appellants nothing to declaim that they were originally parties, in their personal capacities, to these proceedings against the respondent, as initiated in the Federal Court, but had been disjoined, in that capacity, by order of French J. Indeed, as I have demonstrated, that is not an accurate factual summation of the situation.
30 Be that as it may, as from 6 September 1984, and up until 13 January 1995, the appellants had, as a matter of law, lost the right to pursue any legal proceedings, of the nature of those in which they now seek to join, against the respondent. The sole right in that regard was vested in the trustee in bankruptcy.
31 I would therefore dismiss the appeal as to the issue of joinder.
32 In the course of his reasons in Bride v Stewart (supra), Ipp J dealt with the summary judgment issue in this way:
"10 ... The learned Master granted summary judgment because he said that the issues concerned had 'all been decided by courts in the past'. He said:
'Turning now to the application for summary judgment, this too seems to be covered by two previous decisions of this Court. In Bride v KMG Hungerfords, unreported; SCt of WA; Library No 8903; 10 June 1991 Murray J put the position as follows (at p40):
"It is my conclusion upon all the evidence that the business with which this case is concerned was in its assets owned and operated by the plaintiffs in partnership and not as trustees for the Family Trust. That being the case they lack standing for their claim in respect of the loss of the business and its income for the claimed period and in respect of the family home and rural land owned by Mr and Mrs Bride personally".
(Page 9)
- Scott J came to the same conclusion in Bride v Hammond Fitzgerald & King (CIV 2078/88). There is essentially no difference between this claim and the claim in each of these two earlier cases. Put a slightly different way, two judges have already determined the proper parties to sue for relief such as that claimed in this action are Mr and Mrs Bride. It is not the trust. I am not in a position to reach a different conclusion.'
- 11 In my view the learned Master has, with respect, lost sight of the fact that the decisions of Murray J and Scott J were concerned only with the business that had been carried on by the applicants, and the assets of that business. For example, Murray J, after pointing out that the assets of the business with which the case before him was concerned was 'owned and operated by the plaintiffs in partnership and not as trustees for the family trust' proceeded:
'That being the case, they lack standing for their claim in respect of the loss of the business and its income for the claimed period and in respect of the family home and the rural land owned by Mr and Mrs Bride personally.'
- Nothing that the learned Judge said had anything to do with the land owned by the applicants as trustees of the Pinwernying Family Trust.
12 Scott J dealt with the same issues. His Honour also found that the assets of the business carried on by the applicants were owned by them personally, and not by them as trustees for the family trust. His Honour, however, pointed out:
'The assets which the partnership was leasing from the Pinwernying Trust would therefore be both the land upon which the factory was situated and the fixed plant and equipment which, by virtue of having been affixed to the land would have become the property of the trust in any event.'
13 Nothing said by Murray J or Scott J could be construed as precluding the applicants, as trustees of the Pinwernying
(Page 10)
- Family Trust, from suing for loss of the assets owned by them in that capacity, and those assets, as their Honours recognised, concerned certain land and the structures that were affixed thereto.
- 14 It is not entirely clear on the papers before this Court precisely what land was owned by the applicants, as trustees of the Pinwernying Family Trust, for the loss of which they are claiming damages. It does appear that in that capacity they owned at least certain parcels of land upon which certain oat mill and stockfeed plants were erected and also land which contained a vineyard and orchard. They may also have owned other land, including land on which a winery had been constructed.
15 The point is that, at least in regard to the land owned by the applicants as trustees of the Pinwernying Family Trust (and the structures affixed thereto) they may have suffered damage in consequence of their loss. The respondent is not entitled to summary judgment in respect of the claims for that damage. Further, in the absence of clear evidence as to which land was owned by the applicants as trustees of the Pinwernying Family Trust, it is not possible to determine which part of the applicants' statement of claim should be struck out on the ground that it represents a claim for damages for loss of assets owned by the applicants personally."
33 With respect, that appears to me to be an accurate summation of the situation. It was, accordingly, not open to the learned Master to take the quantum leap of striking out the whole of the appellants' claim. It is trite to say that the power to order summary judgment should only be used sparingly and ought never to be exercised unless it is clear that there is no question to be tried (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 59). That cannot be said to be the situation in the instant case. If, notwithstanding the fact that they have not been successful as to the joinder issue, the appellants desire to proceed with any claims as to loss said to be sustained by the Trust, they are entitled to do so.
34 I would, accordingly, allow the appeal to the extent necessary to set aside the order striking out the appellants' claim and the judgment entered against them. In lieu there should be an order dismissing the application for summary judgment with costs.
(Page 11)
35 I would not, on the present appeal, make the other orders sought by the appellants, as it is by no means apparent that the action is ready for immediate trial. I would refer those questions to a Master for consideration.
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