Calvo v Calvo

[2019] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation:	Calvo v Calvo [2019] NSWSC 213
Hearing dates:	1 March 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Equity - Applications List
Before:	Kunc J
Decision:	Proceedings dismissed with indemnity costs
Catchwords:	CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Allen v Snyder [1977] 2 NSWLR 685 Calderbank v Calderbank [1975] 3 All ER 33 Calvo v Sweeney [2009] NSWSC 719 Shaw v State of New South Wales [2012] NSWCA 102
Category:	Principal judgment
Parties:	Daniel Calvo (Plaintiff)   Athalie Calvo (Defendant)
Representation:	Counsel: R. Golovina - Solicitor (Plaintiff) P. Newton (Defendant)   Solicitors: RMG Law & Associates (Plaintiff) Stephen Wawn & Associates (Defendant)
File Number(s):	2018/206878
Publication restriction:	No

EX TEMPORE JUDgment (REVISED)

Summary

1. These proceedings are a family dispute about a large rural property near the Snowy Mountains (the "Property"). Without disrespect I shall refer to the family members by their given names. Daniel, for whom Ms R Golovina, Solicitor appeared is the plaintiff. He is one of the adult sons of the defendant, Athalie. Mr P Newton of Counsel appeared for Athalie on the instructions of her tutor.

2. In 1980 Athalie and her late husband, Peter, bought the Property as joint tenants. They made many improvements to it. On Peter's death, Athalie became registered proprietor of the Property by survivorship. In any event, Peter left Athalie his entire estate.

3. More recently, Athalie has put the Property up for sale. Daniel strongly objects to this. In his statement of claim filed on 8 August 2018, Daniel alleges that he has various legal and equitable interests in the Property entitling him to declarations of express, resulting or constructive trusts. At its most basic Daniel says he is entitled to that relief because Peter said from time to time that he (Peter) wanted the Property never to be sold and that it should stay in the family forever. Daniel also says that he contributed financially to the improvements to the Property.

4. By motion filed on 26 September 2018, Athalie seeks to have the proceedings dismissed under UCPR Part 13, Rule 13.4 and costs on the indemnity basis. After considering the pleadings and Daniel's evidence, the Court is satisfied to a high degree of certainty that this is a clear case where Athalie is entitled to that relief. Daniel's case does not appear to rise higher than that Peter wanted the Property to stay in the family.

5. On any view, that is not sufficient to make out a case for the relief sought in the statement of claim. If the proceedings went to trial on the basis of that statement of claim and the evidence that has been adduced, the Court is satisfied that the proceedings would fail.

The test for summary dismissal

6. UCPR Rule 13.4 provides:

“13.4   Frivolous and vexatious proceedings

(1)   If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).”

7. I will apply the test for summary dismissal set out in the decision of the five member bench of the Court of Appeal in Shaw v State of New South Wales [2012] NSWCA 102 (per Barrett JA; Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreeing):

“30. I have said that the "triable quality" of the three matters just mentioned is in issue. There is no dispute that the central inquiry is that indicated by Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 and, more recently, Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 where Gadroon, McHugh, Gummow and Hayne JJ said at [57]:

"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

31 That formulation has since been re-affirmed: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]; and, while it was said in Batistatos that the General Steel formulation should not be given "canonical force", it is convenient, for present purposes, to refer to the criteria laid down by the case law I have mentioned as the "General Steel test".

32   The question is therefore whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated.”

8. There is no question in this case of whether that test or the Court's approach requires further modification in the light of s 56 of the Civil Procedure Act 2005 (NSW).

The relief sought

9. The statement of claim seeks this relief:

“1.   Declaration that the Plaintiff has a legal and equitable interest in the estate in the land contained in Certificate of Title Folio Identifier XXX known as Mirrabooka (the Property) by way of either an express or a consecutive trust.

2.   Further or in the alternative a declaration that the Plaintiff has, by way of contributions to the improvements of the Property and the common interest of the Defendant, an interest in the Property by way of resulting trust and such interest being proportionate to his contributions.

3.   The Defendant is to accept the Plaintiff’s reasonable offers regarding the financial servicing of the Property.”

10. The Court can immediately dispose of two aspects of that relief.

11. First, Ms Golovina accepted that nowhere does the statement of claim plead the requisite elements for the Court to find an express trust in Daniel's favour over any part of or interest in the Property.

12. Second, Ms Golovina was unable to demonstrate to the Court any basis known to the law, let alone one pleaded in the statement of claim, for relief in terms of paragraph 3 of the statement of claim.

13. Having eliminated those two aspects of the relief claimed, the focus of the argument was on Daniel's alleged entitlement to relief by way of resulting or constructive trust, whether or not arising from the improvements to the Property to which he allegedly contributed.

The evidence

14. In addition to the statement of claim, Daniel adduced affidavit evidence from himself and his siblings in support of the claim. In response to a question from me, Ms Golovina informed the Court that the affidavit evidence upon which she relied in resisting Athalie's application was the evidence that Daniel would rely on in chief at any hearing. Without any disrespect, Ms Golovina accepted my somewhat colloquial characterisation that the Court could proceed on the basis that the evidence which Daniel had adduced was in effect "as good as her client's evidence was going to get". She did, however, also submit that at any trial her client would be able to cross-examine Athalie. That submission would be of little or no assistance on an application like this in any event. However, in this case it is a possibility to which I give even less weight because Athalie is no longer a capable person.

15. As the argument developed, it became apparent that the only parts of the evidence that were really of any significance were limited paragraphs of two affidavits sworn by Daniel. Those paragraphs were specified in answers to particulars that had been provided in response to requests made by Athalie's legal advisors in relation to the statement of claim. It is convenient to set out those parts of the evidence at this point in the Court's reasons.

16. In his affidavit of 18 June 2018, Daniel said:

“33.   The farm was to remain in the family for generations and never to be sold. These were the wishes of my father for many years and they were declared in this way to us and his grandchildren on many occasions.

34.   Most recently at Easter 2016, mum said to me down at the farm in the kitchen, "I am doing all this for you boys." I said, "What do you mean"? She said, "Well, you have done everything".

35.   During 2008-09, on a number of occasions, my father said, "If we win the case [referring the litigation then on foot concerning the family’s ownership of the Australian Institute of Music], we hold onto the farm. If we lose, it vanishes into thin air." I, my brother and mum were present in those conversations. They occurred mostly at their flat in Zetland and in the barrister's chambers, in 2008.

36.   It was further discussed during that year and reiterated to my son, James Calvo by his grandfather, "One day all of this will be yours". He went on to say, "If your father can pull this case off, the farm will stay in the family for generations to come and that would be "a wonderful thing".

37.   As recently as Christmas Day 2017 when I was staying at the farm with my son, I pleaded with mum, in a lengthy text to reconsider alternative solutions to the sale of the farm, but to no avail. The correspondence was replied to though. She said, "Thanks Danny". Further texts in the days after, in early January amounted to nothing.

38.   The text on Christmas Day said, "I know we've been through some difficult situations but I feel nonetheless sad that you are not here" I went on to say, "It would be good to talk about the sale of the farm. There are other ways of working this all out where the property is not sold and the financial stresses you constantly face are no more. Maybe we can talk about this down the track, an open dialogue, love Dan". To date I have not been replied to.”

17. In Daniel's affidavit of 7 August 2018, he said:

“29.   On or about December 2008, outside Wentworth Chambers in Phillip Street, I had the following conversation with my father:

Father:   If we win the case, we hold onto the farm. If we lose, it will vanish into the air.

Me:   What do you mean by that?

Father:   Litigation is always risky, the farm is the only thing that we have left, and it is on the knife’s edge.

Me:   OK, Dad. Then that means we have to win.

30.   On or about March 2009, at my parents’ flat in Zetland, I had another discussion with my father:

Father:   Is it all over now?

Me:   What do you mean?

Father:   Is the farm OK?

Me:   We have to wait for judgment.

Father:   OK, I guess we got to wait.

31.   It was further discussed in September 2008 at Zetland flat with my son James:

Father:   One day all of this will be yours. If your father can pull this case off, the farm will stay in the family for generations to come and that would be a wonderful things.

Me:   As the grandpa said, the farm is the jewel in the Crown, and cannot be sold by any of us in the future.

32.   Most recently at Easter 2016, mum said to me down at the farm in the kitchen, “I am doing all this for you boys.” I said, “What do you mean”? She said, “Well, you have done everything”.

33.   As recently as Christmas Day 2017 when I was staying at the farm with my son, I pleaded with mum, in a lengthy text to reconsider alternative solutions to the sale of the farm, but to no avail:

Me:   I know we’ve been through some difficult situations but I feel nonetheless sad that you are not here. It would be good to talk about the sale of the farm. There are other ways of working this all out where the Property is not sold and the financial stresses you constantly face are no more. Maybe we can talk about this down the track, an open dialogue, love Dan”.

Mother:   Thanks, Danny.

Further texts in the days after, in early January amount to nothing.”

Four fundamental difficulties in Daniel's case

18. Mr Newton submitted there were four fundamental problems with the case that Daniel apparently wished to make. I accept that submission. In what follows I will generally be reproducing, by way of acceptance, Mr Newton's submissions. I will then consider Ms Golovina's arguments in response.

19. The four fundamental problems which I accept are, for all intents and purposes, insuperable obstacles to the relief sought in the statement of claim are:

1. There is no suggestion that Daniel ever contributed to the purchase price of the Property.

2. There is no suggestion that Athalie made any representation that Daniel had or would have any interest in the Property.

3. To the extent that Daniel relies on Peter's statements, made in 2008 and 2009, as disclosed in the affidavit evidence that the Property should remain in the family's hands and never be sold, there is no pleading of adoption of that state of mind by Athalie or evidence that she ever said anything to that effect.

4. Even accepting, as the Court must for the purposes of an application of this kind, that Peter made statements of the kind attributed to him, neither the statement of claim nor the evidence makes out any detrimental reliance by Daniel on any such statements because the improvements upon which Daniel proposes to rely were all contributed to by him in 2005 and 2006 i.e. before the pleaded statements of Peter were made.

Statement of claim

20. The pleading may be considered in three parts:

21. The first section is paragraphs 1 to 22:

“1   The Plaintiff is the Defendant's son.

2   At all material times, the Defendant was a legal owner of the property at XXX known as Mirrabooka (the Property).

3   In or about April 1980 the Plaintiffs' parents bought the Property.

4   From 1980-1986, the Plaintiff and the Defendant lived as mother and son at the Property, and until the middle of 2010 the Plaintiff was regularly staying at the family home for approximately three weeks.

5   Upon the death of the Plaintiff's father (the deceased) the Property was conveyed to the Defendant after the issue of Grant of Probate by the Supreme Court of NSW.

6   Upon acquiring the Property, the deceased immediately commenced construction and improvements to the Property.

Particulars

The erection of three dwellings, a three bedroom single storey double brick house on the lower grounds of the Property, a five bedroom, double brick, three storey house on the higher plains and a fully self contained two level apartment which was built above the main house.

7   Throughout the 1980's and 1990's, the first house was rented out to general occupants, managers of the Property and other workers who were employed to build the farm's vast network of irrigation, dams, nurseries and other rural infrastructure costing tens of thousands of dollars.

8   Between 1984 -1995, significant works were committed to the farm. This included three 22,000 gallon concrete tanks which are connected to three bores producing drinking water and irrigation to the nurseries and the extensive tree planting programs, which required further and extensive funding into the hundreds of thousands of dollars.

9   In the early 1990s, the nurseries were established for the propagation of cold climate plant stock and were also founded on the prospect of commercial trade. At the same time, additional capital was applied to the laying of an extensive pipeline network for irrigation costing approximately $380,000 over a six-year period.

10   During this entire period, all these projects were financed through a family owned and run business, the Australian Institute of Music, founded by the deceased.

11   The deceased's intention in relation to the Property was that it was to remain in the family for generations and never to be sold.

12   This intention was expressed to the plaintiff, the defendant, plaintiff's siblings and deceased's grandchildren.

13   The intention was also implied by the deceased's conduct.

Particulars

Deceased's conduct as evidence of intention that farm remain in the family

The improvements effected by the Plaintiff's father with the assistance of Plaintiff and siblings over the commencing from the time of acquisition as set out in paragraphs 6-9.

The use of AIM'S profits (being a family company) to effect improvements

Deceased's express declarations of intention that farm remain in the family

Conversations between Plaintiff and the deceased in:

•   September 2008

•   December 2008;

•   March 2009

Conversations between Plaintiff and Defendant in:

•   Easter 2016

•   Christmas Day 2017

14   The relationship between the Defendant and the Plaintiff started to deteriorate in early 2011 and progressively got worse when the Defendant listed the Property for sale in 2015 for $1.8 million and refused to discuss viable financial solutions to save the Property.

15   The Property is currently being advertised for sale at $1.1 million.

16   From the time the deceased and Defendant acquired the Property and as a result of the implied and expressed intention, the Plaintiff made contributions to the improvement of the Property, with the expectation that the Property would remain in the family and pass to him and his siblings.

17   In 1997 to 2006, the Plaintiff hired plant equipment and purchased tools and machinery for the development of the Property's grounds.

18   The Plaintiff purchased white goods and other household furnishings for both houses totalling $35,000.

19   In 2005 and 2006, the Plaintiff committed to several landscaping projects including retaining walls, drainage channels and pathways he also purchased many of the railway sleepers and deck spikes for the walls.

20   The cost of purchasing materials was borne by the family and the Plaintiff through AIM. The Plaintiff personally paid $2,500 worth of landscape sleepers.

21   The Plaintiff paid $900.00 for the hire of the equipment.

22   In total, the Plaintiff has spent approximately $30,000 in labour, and $2500 in advice and direction of various aspects of the Property.”

22. Some of the paragraphs of that pleading were amplified by answers to particulars. They are:

“2.   In relation to paragraph 13:

(a)   Paragraph 13 of the plaintiff’s affidavit sworn on 7 August 2018 does not depose any conversation. The alleged conversation particularised in the first bullet point between the plaintiff and the deceased is the same conversation deposed in paragraph 31 of the plaintiff’s affidavit.

(b)   The alleged conversation particularised in the second bullet point between the plaintiff and the deceased in December 2008 is the same conversation deposed in paragraph 29 of the plaintiff’s affidavit.

(c)   The alleged conversation between the plaintiff and the deceased in March 2009 particularised in the third bullet point is the same conversation as deposed in paragraph 30 of the plaintiff’s affidavit.

(d)   The alleged conversation between the plaintiff and the defendant at Easter 2016 particularised in the fourth bullet point is the same conversation as deposed in paragraph 32 of the plaintiff’s affidavit.

(e)   The alleged conversation between the plaintiff and the defendant particularised in the fourth point is the same conversation as deposed in paragraph 33 of the plaintiff’s affidavit.

3.   In relation to paragraph 16:

(a)   “The implied and express intention” is the same intention as pleaded in paragraph 11, 12 and 13.

(b)   The plaintiff’s contributions to the improvement of property are those particularised in paragraphs 17 to 29 of the Statement of Claim.”

23. In relation to this first part of the pleading, the first point to note is that, as paragraph 6 alleges, the substantial construction and improvements to the Property were undertaken by Peter. There is no suggestion that at that stage anything was done by Daniel.

23. It is then necessary to consider paragraphs 11 to 13 of the pleadings which refer to Peter's "intention in relation to the Property was that it was to remain in the family for generations and never to be sold".

24. The particulars invite attention to paragraphs 29 to 33 of Daniel's affidavit of 7 August 2018 (see paragraph [17] above).

25. This part of the pleading demonstrates that the only intention that is pleaded in relation to the Property is Peter's. There is no suggestion that it was an intention held by Athalie. When one turns to the conversations particularised in support of the intention, with one exception none of those conversations, even read in the most generous way towards Daniel or for the purposes of Daniel's case, could be read as conferring or being intended to confer any rights in the Property on Daniel. The only possible but faint exception is what is said in paragraph 31 (which I set out again for convenience):

“31.   It was further discussed in September 2008 at Zetland flat with my son James:

Father:   One day all of this will be yours. If your father can pull this case off, the farm will stay in the family for generations to come and that would be a wonderful thing.

Me:   As the grandpa said, the farm is the jewel in the Crown, and cannot be sold by any of us in the future.”

27. However, even that conversation is hardly a clear indication of a dispositive intention (as opposed to an expression of a general hope for the future). Even if it was, it is a statement made to Daniel's son, James, with an affirmation by Daniel of his belief that the Property could not be sold by anyone in the future.

28. The next point to note about this part of the pleading is that all of the work and improvements alleged in paragraphs 17 to 22 pre-date what are apparently relied on as representations for the purposes of creating a right in Daniel. This is clear from the particulars to paragraph 13 (see paragraph 22] above). All of those alleged representations were made in 2008, 2009, 2016 and 2017.

29. I should also observe that of the improvements pleaded, the purchase of white goods and household furnishings could not be considered an improvement to the Property that would have any relevance to the claim sought to be made by Daniel. I also note for completeness that the particulars subsequently provided in relation to that claim said that the household furnishings and white goods were only valued at $1,800 rather than $35,000.

30. To summarise the effect of the pleading and the evidence thus far, there is nothing capable of being a representation that would give rise to a right in Daniel to an interest in the Property and insofar as he alleges that he did anything by way of contribution or otherwise, it cannot be in reliance on any of the alleged representations because what he did pre-dates them.

31. I will not reproduce the second part of the pleading, being paragraphs 23 to 31. These relate to Daniel's involvement in litigation concerning the Australian Institute of Music, which was a not-for-profit company founded by and owned by Peter. There was a dispute in relation to the shareholdings in that company which was resolved by the decision of White J, as his Honour then was, in Calvo v Sweeney [2009] NSWSC 719. Daniel makes various allegations of his role as the "driving force" of the family's success in that litigation. Those parts of the pleading are completely irrelevant to any claim that Daniel might have to the Property.

32. The third part of the pleading is paragraphs 32 to 35:

“32   As a result of the deceased's:

a.   Improvements to the Property;

b.   Use of AIM funds/profits to effect improvements

c.   Conversations with the Plaintiff

The Plaintiff has at all times considered the Property to "family" Property and to be held by the family.

33   As a result, the Plaintiff:

a.   Has contributed his time and labour to the farm;

b.   Contributed financially to the farm;

c.   Consented to AIM's profits being used to finance the improvements to the Property;

d.   Contributed to the improved profitability of AIM and ensured its success in litigation to ensure the Property was not lost in such litigation.

34   The Defendant has, by virtue of:

a.   The deceased's conduct in effecting improvements to the Property;

b.   Conversation between her and the deceased.

Known that the deceased at all times intended to retain the farm in the family and that notwithstanding her acquisition of the title pursuant to the deceased's death that she was to hold the farm on trust for her children.

35.   In the circumstances, the plaintiff seeks the relief set out in the Statement of Claim.”

33. Paragraph 32 undoubtedly sets out Daniel's state of mind. I accept that he has always considered the Property to be "family property". The difficulty is that nowhere is it alleged that Athalie contributed in any way to Daniel having that state of mind. Whatever he may or may not have done "as a result" (see paragraph 33 of the statement of claim) is in no way attributed to Athalie.

34. Finally, in relation to paragraph 34 of the pleading, I do not see how it is made out either in its own terms or by reference to any of the evidence. The particulars for these paragraphs are:

“9.   In relation to paragraph 34(b):

Please refer to paragraphs 29, 30, 31, 32 and 33 of the plaintiff’s affidavit sworn on 7 August 2018.”

35. They bring the discussion back to the same conversations which I have set out in paragraph [17] above. I do not see how Peter's conduct in simply effecting improvements to the Property could give rise to the state of knowledge alleged in Athalie concerning Peter's intentions. Insofar as conversations are relied on, the evidence does not disclose any such conversations and Daniel's evidence does not go so far as to suggest that Athalie was present during any of the conversations that have been particularised. I will return to this last point in considering Ms Golovina's arguments, to which I now turn.

Daniel's arguments

36. Ms Golovina began by drawing the Court's attention to the decision of the Court of Appeal in Allen v Snyder [1977] 2 NSWLR 685, in particular these parts of the headnote:

“(e)   Financial arrangements between parties will appear in many different forms. They may involve payments, loans, gifts or services. They may relate to the deposit, the balance of the purchase price, to mortgage payments, furniture and household expenditure. Whether the arrangement discloses an agreement, or common intention, referable to the beneficial enjoyment of the home is a question of evidence, not of law.

Gissing v. Gissing [1971] A.C. 886, at pp. 898, 903, 905, followed.

(f)   Proof of expenditure or services for the benefit of the household, or the provision of furniture, is insufficient, standing alone, to establish a common intention as to the ownership of the home.

Gissing v. Gissing [1971] A.C. 886, at pp. 901, 909, 910 followed.”

37. Ms Golovina accepted that the mere provision of services or expenditure for the benefit of a household is insufficient in and of itself to demonstrate a common intention as to the ownership of the asset. Nevertheless, she submitted that it was Daniel's case that it was the common intention of Peter and Athalie for the Property to be held on trust for their children and that Athalie was bound by that intention.

38. An immediate difficulty for Daniel is that no such case is pleaded in the statement of claim. Moreover, as I have already indicated, none of the conversations particularised as supporting it can, in my view, have that effect.

39. Ms Golovina then drew attention to the same conversations that I have set out in paragraphs [16] and [17] above and informed me that her instructions were that, whilst not stated in the affidavits, Athalie was in fact present at the time the statements which I have recorded above were made.

40. Even accepting that to be the case, notwithstanding there is no evidence to that effect, I do not think that assists Daniel for two reasons. My attention was again drawn to what was said in paragraphs 34 to 38 of Daniel's affidavit of 18 June 2018 (see paragraphs [16] above). The first reason why I do not think they assist is that, even taken in accordance with their terms, the various statements would not support the Court drawing an inference of a common intention of the kind alleged.

41. Second, even if the Court were to accept that Athalie was present at the time those things were said, her mere presence without more would not support an inference that she had somehow agreed to be bound by or shared that particular intention.

42. The same observations apply with equal force to the conversations alleged in paragraphs 30, 31 and 32 of Daniel's affidavit of 7 August 2018 upon which Ms Golovina relied (see paragraph [17] above).

Conclusion

43. Mindful of the exposition of the relevant test which I have set out in paragraph [7] above, I remind myself that a party in the position of Athalie bears a heavy burden in an application of this kind. The Court will not lightly prevent a party from bringing forward a case for final adjudication.

44. That being said, I have no doubt that this case would fail if it was permitted to go to trial on the statement of claim and the evidence which has been adduced as the highest and best evidence that Daniel is able to provide. It is one of the "clearest of cases" because of its failure to demonstrate a proper basis for any of the relief sought in the statement of claim in relation to a resulting or constructive trust.

45. For these reasons, the statement of claim will be dismissed.

Costs

46. Athalie applies for her costs on the indemnity basis.

47. Ms Golovina accepted that her client was obliged to pay Athalie's costs of these proceedings on the ordinary basis but disputed Athalie's entitlement to a special costs order.

48. It will be recalled that the notice of motion, prayed for costs on the indemnity basis (see paragraph [4] above). That prayer was clearly drafted against the background of some preceding correspondence to which I will now refer.

49. Daniel had earlier placed a caveat over the Property which Athalie sought to lapse. As part of that skirmish between the parties, Athalie's solicitor wrote to Ms Golovina on 21 June 2018 saying:

“…We note that, assuming we are instructed, that we would advise Mrs Calvo that your client’s claim is without merit and likely to be summarily dismissed if pursued. Your client’s evidence does not disclose any legitimate basis on which your client can maintain the existence of an express or constructive trust Further, the evidence of alleged contributions to the Property by Mr Benjamin Calvo are irrelevant to your client’s claim.

Notwithstanding this, we believe that our client will agree to provide an undertaking as follows provided that your client provides the usual undertaking as to damages:

That she will not enter into any contract for sale of the land known as Mirrabooka (Folio Identifier XXXX) (Property) prior to the later of:

a)   5 June 2018, or

b)   determination of any application to the Court by your client, filed and served by 5 June 2018 to restrain the sale of the Property;

without providing your client with seven days' notice of her intention to enter into any such contract.

We will urgently seek such instructions prior to 9:00 am tomorrow….

We note that assuming we are instructed, and your client does proceed with his summons and/or any related application, our client will in all likelihood seek security for costs, costs on the indemnity basis of any application and expedited summary dismissal or strike out of any such claim….”

50. A summons was filed on 5 July 2018 supported by the affidavits of Daniel sworn on 18 June 2018, and his brother Benjamin sworn on 12 June 2018. Having reviewed that summons, Athalie's solicitor again wrote to Ms Golovina on 19 July 2018:

“…We have now had an opportunity to review the Summons filed 5 July 2018 and the affidavits of Daniel Calvo sworn 18 June 2018 and Benjamin Calvo sworn 12 June 2018. We reiterate our client's position as set out in our letter of 21 June 2018.

The contents of the affidavits of Daniel and Benjamin Calvo are largely irrelevant and inadmissible. Paragraph 44 of Daniel Calvo's affidavit states that: “I seek orders from this Honourable Court to extend the operation of the caveat to prevent the sale of the farm and to seek other possible remedies for the betterment of the estate”. Paragraph 38 of Benjamin's Calvo's affidavit states: '. . . the management of our late father's Estate must be put in different hands, before there is nothing left" The Estate of the late Peter Calvo has been fully administered. There is no such estate. The contents of the affidavits do not support your client's claim or disclose any cause of action against our client. Your client's claim is, with respect, unmeritorious and without any reasonable prospects of success.

You have now exposed our client to incurring legal costs in defending the claim made against her. We understand your client has no prospect of meeting an adverse costs order. If this understanding is incorrect, please advise how your client can meet an adverse costs order.

Having regard to the above, we invite your client to immediately discontinue his claim. If he does so within the next 7 days, our client consents to the proceedings being discontinued with no order as to costs.

In the event your client does not discontinue these proceedings within the next 7 days, the quickest, cheapest way to determine this matter is for our client to apply to have the claim summarily dismissed. Should your client wish to pursue the matter, we invite you to file a statement of claim properly pleading your client's case and setting out all relevant facts, matters and circumstances relied upon to support the claim for relief. This will allow our client to properly understand the basis on which your client claims to be entitled to the relief claimed, which as discussed above is not evident on your client's evidence. ...

Our client reserves all her rights and will rely on this correspondence in any application before the Court.”

51. Daniel took up the invitation in that letter to file the statement of claim. After the statement of claim was filed, particulars were sought, some of which I have set out above. On 17 September 2018, Athalie's solicitors wrote to Ms Golovina saying:

“…We refer to the above matter and your letter of 3 September 2016 (your letter) providing further and better particulars in response to our letter dated 17 August 2018 (our letter).

Your client's Statement of Claim, further and better particulars and affidavit sworn 7 August 2018 do not disclose any cause of action. We are instructed that your client is impecunious and will not be able to meet an adverse costs order made in these proceedings. In the circumstances, we are instructed to make an application for summary dismissal of your client's claim to facilitate the just, quick and cheap resolution of these proceedings.

Before bringing an application for summary dismissal and to avoid further costs and disbursements being incurred in these proceedings, we are instructed to provide your client with one final opportunity to discontinue the proceedings. You have been provided with repeated opportunities to Property plead and particularise your client's claim. As indicated, the pleading is inept and liable to be struck out We respectfully suggest that you obtain the advice of counsel in relation to the pleading and this offer.

In the event your client files a Notice of Discontinuance within the next 7 days, our client will consent to the proceedings being discontinued with no order as to costs with the intention that each party pay their own costs. This offer is open for 7 days from the date of this letter. In the event your client does not file and serve a Notice of Discontinuance within the next 7 days, the offer will automatically lapse and we will proceed to file and serve an application for summary dismissal of your client's claim pursuant to UCPR r 13.4 and seek appropriate costs orders on an indemnity basis.

This offer is made in accordance with the principles of Calderbankv Calderbank [1975] 3 All ER33.”

52. On the same day, Ms Golovina responded on behalf of Daniel by refusing the offer made in the letter.

53. Mr Newton submits that the course of correspondence which I have set out above and, in particular, the offer made in the letter of 17 September 2018 warrant an order for costs on the indemnity basis from the period seven days after the date of the letter of 17 September 2018. I accept Mr Newton's submission for two reasons.

54. First, in accordance with the usual principles in relation to awarding indemnity costs, it seems to me that this is a case where Daniel's prosecution of the proceedings was unreasonable in the requisite sense: properly advised, he ought to have known from the outset that the proceedings would fail.

55. Second, in accordance with the Calderbank principles invoked in the letter of 17 September 2018, and where the letter clearly put Daniel on notice that an application for costs on the indemnity basis would be made, this is an appropriate case for the Court to exercise its discretion to order Athalie's costs to be paid on the indemnity basis on and from 24 September 2018.

Conclusion

56. The orders of the Court are:

1. The proceedings are dismissed.

2. The plaintiff is to pay the defendant's costs of and incidental to the proceedings on the ordinary basis up to and including 23 September 2018, and thereafter on the indemnity basis.

3. Any affidavit of the defendant in support of an application for a gross sum costs order is to be served and filed by email to my associate, together with an outline of submissions, on or before 15 March 2019.

4. Any affidavit of the plaintiff in response to an application by the defendant for a gross sum costs order is to be served and filed by email to my associate, together with an outline of submissions, on or before 29 March 2019.

5. The Court notes the agreement of the parties that unless the Court is of the view that it requires the assistance of oral submissions from the parties, any application for a gross sum costs order may be dealt with on the papers.

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Decision last updated: 05 March 2019