Cockram v Russell

[2003] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:	Cockram v Russell [2003] QSC 268
PARTIES:	BARRY ARTHUR COCKRAM (plaintiff) v MARTIN WILLIAM RUSSELL (defendant)
FILE NO:	S2701 of 1996
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	29 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2003
JUDGE:	Mullins J
ORDER:	1.  The plaintiff be given leave to file the Substitute Further Statement of Claim which was made Ex 1 at the hearing on 16 May 2003 as his statement of claim in this proceeding. 2.  Service of the Substitute Further Statement of Claim be deemed to have been effected on the defendant on the date of publication of these reasons for judgment.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – PLEADINGS – leave to amend – where amended statement of claim was struck out and the plaintiff was given leave to re-plead – where proposed amended statement of claim was not filed within the time allowed for that purpose – where plaintiff applied for an extension of time in which to file proposed amended statement of claim – where filing of the proposed statement of claim would cause no prejudice to the defendant – the plaintiff should be given leave to file the proposed statement of claim.
COUNSEL:	SJ English for the plaintiff Defendant in person
SOLICITORS:	John Woulfe for the plaintiff

1. MULLINS J:   Although this proceeding has a long history, the matter is still at the stage where the pleadings have to be put in order.  In reasons which I gave on 24 March 2003 I referred to the objectionable nature of both the amended statement of claim filed on 26 July 2002 and the amended defence and counterclaim filed on 18 September 2001. 

1. On 24 March 2003 I ordered that the amended statement of claim filed on 26 July 2002 be struck out and gave leave to the plaintiff to replead.  I ordered that the further amended statement of claim of the plaintiff be filed and served on or before 4pm on 28 April 2003.  I ordered that the matter be listed for further review on 16 May 2003 and that any application that either party wished to have heard on that review date be filed and served 3 business days before the review date.  On 16 May 2003, the plaintiff sought to have heard the application filed on 12 May 2003 which was supported by an affidavit of the plaintiff filed on the same day. 

1. In that application the plaintiff sought leave to file and serve a new statement of claim on the basis that additional time than allowed for in the order made on 24 March 2003 was required to complete the new statement of claim.  The plaintiff deposed that the delay was to some extent due to his underestimating the time it would take to have a new statement of claim prepared, when the period between 24 March 2003 and 28 April 2003 included the Easter holidays and the plaintiff’s solicitor was on holidays for additional time on either side of the Easter break. 

1. At the hearing on 16 May 2003 the proposed new statement of claim was tendered as Ex 1 and is entitled “Substitute Further Statement of Claim” (to which I will refer as the “proposed statement of claim”).  It was only at that hearing that a copy of the proposed statement of claim was provided to the defendant.  I therefore adjourned the application to enable the defendant to consider what approach he was going to take to the proposed statement of claim and, if able to, obtain legal advice.  The application filed on 12 May 2003 was therefore adjourned for hearing to 25 July 2003.  I ordered that any written submissions of the defendant on the question of whether the plaintiff be granted leave to file and serve a statement of claim in accordance with Ex 1 be sent to my Associate and to the plaintiff on or before 4pm on 11 July 2003. 

1. The defendant did not file any submissions in accordance with the order which I had made for that purpose.  A facsimile was sent to my Associate by the defendant dated 22 July 2003 which with accompanying pages I made Ex 1 at the hearing on 25 July 2003.  The defendant sought an adjournment of the hearing on 25 July 2003 which I refused.  The application for leave to file the proposed statement of claim was heard by me on 25 July 2003.  The written submissions made on behalf of the plaintiff were Ex 2 at that hearing.  As I had already given leave to replead, but the proposed statement of claim had not been filed within the time allowed for that purpose, the substance of the plaintiff’s application for leave to file the proposed statement of claim was obtaining an extension of time from that which had been allowed in my order made on 24 March 2003.

Background

1. The proceeding was commenced by writ of summons filed on 29 March 1996.  As required by O 6 r 1 of the Rules of the Supreme Court, the writ contains an endorsement of the plaintiff’s claims in the following terms:

“The Plaintiff seeks:

1.        A declaration that the Plaintiff and the Defendant entered into a partnership on or about 15 November 1988.

2.        A declaration that such partnership was dissolved on or about 29 July 1994.

3.        That all necessary accounts and enquiries be made and taken.

4.        An order that the Plaintiff retain the partnership assets presently in his possession.

5.        An order that the Respondent retain the partnership assets in his possession at the date of the dissolution of the partnership.

6.        An order that the remaining partnership assets be sold.

7.        An order that from the proceeds therefrom any remaining partnership debts be paid.

8.        An order that there be paid to the Plaintiff and the Defendant such sums from such proceeds as the Court seems meet and just.

9.        An order that the Caveat registered on the land described as Lot 233 on R.P. 216120 Parish of Cedar Country of Ward being all the land contained in Certificate of Title Volume 7078 Folio 78 and situate Lot 233 Landsman Court, Mount Tamborine be removed.

10.      If it be found that through the fault or wrongdoing of the Defendant there be insufficient funds to pay the amount to which the Plaintiff is found to be justly entitled then the Defendant pay such sum.

11.      A declaration that the Defendant wrongfully detains from the plaintiff the Citroen motor vehicle Queensland Registration No 962-BER.

12.      An order that the Defendant pay to the Plaintiff in money the market value of the said vehicle at the time of the wrongful detention and/or conversion together with damages for such detention and/or conversion.

13.      An interim order that the Defendant produce to K Smith, Accountant, the books of account and financial records in his possession to allow taxation returns for the partnership for the financial year ended 30^th June 1994 to be prepared.

14.      Such further or other order as the Court may seem meet or just.

15.      That the Defendant pay the Plaintiff’s costs of and incidental to the action to be taxed.”

1. The statement of claim that was delivered on 3 June 1996 set out identical claims for relief to that endorsed on the writ of summons. 

1. Prior to the proposed statement of claim, the most recent pleading in which the plaintiff’s claims were set out was the amended statement of claim filed on 26 July 2002. 

1. The allegations made in that statement of claim related to:

(a)an alleged oral partnership between the plaintiff and the defendant in respect of the carrying on of the business of a gallery under the name “Spiga” at Marina Mirage, Main Beach between 15 November 1988 and July 1994 and dealings with partnership property in respect of which the plaintiff sought an account and other relief;

(b) purchase of land described as Lot 233 on RP 216120 in the Parish of Cedar County of Ward (“the land”) in November 1989 registered in the name of the plaintiff which the plaintiff alleged was held on the basis that it was an asset of the business partnership or personal partnership between the plaintiff and the defendant, despite lodgment of a caveat by the defendant with the consent of the plaintiff that referred to an agreement between them that the plaintiff would purchase the land and hold it on behalf of the defendant;

(c)the retention by the defendant of an Alfa Romeo motor vehicle registered in the defendant’s name which had been purchased by trading in a station wagon vehicle that the plaintiff alleged had been purchased with partnership funds; and

(d)the detention by the defendant of a Citroen motor vehicle registration number 962-BER which was transferred from the plaintiff’s name into the defendant’s name, but in respect of which the plaintiff alleged he remained the owner.

1. Most of the relief sought in that statement of claim by the plaintiff was directed at sorting out the affairs of the business partnership including declarations, accounts, enquiries and orders for payment.  The plaintiff sought a declaration that the defendant wrongfully detained from the plaintiff the Citroen motor vehicle.  In relation to the land, the plaintiff sought an order that the plaintiff retain the land for his own use absolutely or, alternatively, a declaration that the defendant holds his interest in the land on a constructive trust for the defendant and the plaintiff in proportions to the contributions which each has made to the land. 

1. The last defence filed by the defendant was his amended defence in counterclaim filed on 18 September 2001.  The defendant alleges in the defence that there was no partnership agreement as alleged by the plaintiff and that the parties’ dealings arose as a result of their cohabitation and personal relationship, although the defendant alleges in his counterclaim that as from 1 July 1990 he was the sole registered proprietor of the business.  The defendant makes allegations against the plaintiff in relation to the conduct of the gallery and the plaintiff’s dealing with assets of the business.  The defendant alleges that the plaintiff agreed to purchase the land and hold it in trust for the defendant as the sole beneficiary.  The defendant alleges that each of the Alfa Romeo and Citroen motor vehicles was lawfully registered in the defendant’s name.

1. In the counterclaim the defendant alleges that during the course of the business the plaintiff caused the defendant severe strain, anxiety, depression, exhaustion, economic hardship and loss and made the defendant homeless.  The defendant counterclaims for damages for $1.5m (although it is not clear which causes of action support that claim for damages) and orders that the plaintiff pay to the defendant all moneys alleged by the defendant to have been misappropriated by the plaintiff and return all stock of the business to the defendant.  The defendant seeks an order that the plaintiff be removed from the register as the proprietor of the land and that the defendant be registered as proprietor of the land.

1. That defence and counterclaim was accompanied by another 30 pages of what are described as “Particulars”, although these allegations are not linked specifically to the allegations set out in the defence and counterclaim.  It is not necessary to summarise these particulars for the purpose of this application.

1. At different stages of the proceeding each of the plaintiff and the defendant has been legally represented and at various stages each has been self-represented.  At the present time the plaintiff is legally represented and the defendant is self-represented. 

Arguments in favour of granting leave

1. The proposed statement of claim has formulated the causes of action which are still being pursued by the plaintiff in a more concise and less objectionable form, than the amended statement of claim that was filed on 26 July 2002.  In view of the fact that the orders which I made on 24 March 2003 did give the plaintiff leave to re-plead his statement of claim, the question which arises on the current application is whether leave to file and serve the proposed statement of claim should be given, in view of the fact that the plaintiff was unable to file and serve it by 28 April 2003.  The plaintiff has offered an explanation for not being able to meet the date of 28 April 2003 for filing and serving the proposed statement of claim.  At the time that date was fixed, the plaintiff was appearing for himself.  

1. The relief which the plaintiff claims in the proposed statement of claim is as follows:

“The Plaintiff’s claim is for:-

(a)    A declaration that the Plaintiff and Defendant were partners pursuant to an oral Agreement made between the Plaintiff  and the Defendant in or about the month of November 1988.

(b)    A declaration that the said partnership has been determined.

(c)    An order that the affairs of the partnership be wound up.

(d)   An order for the appointment of a Receiver and/or Manager of the partnership’s business and property.

(e)    An account of partnership assets debts and liabilities at the time of dissolution.

(f)    An inquiry as to what has become of the partnership property and whether any, and if so, what parts thereof remain or are undisposed.

(g)    An inquiry whether any and which of the partnership debts and liabilities have been since paid or satisfied and by whom and out of what fund.

(h)    An account of the receipts and payments dealings and transactions of the Defendant in respect of the business and assets of the partnership from the date of dissolution.

(i)     An account of the profits of the partnership business since the date of dissolution.

(j)     An order for the payment to the Plaintiff of what is found to be due to the Plaintiff upon the taking of the said accounts including such share of any profits made since the date of dissolution as the Court may find to be attributable to the Defendant’s use of the Plaintiff’s share of the partnership assets.

(k)    An order that all necessary accounts and enquiries be taken and made as the Court deems fit.

(l)     An order that the Caveat registered on the land described as Lot 233 on R 216120 Parish of Cedar County of Ward being all the land contained in Certificate of Title Volume 7078 Folio 78 and situate Lot 233 Landsman Court, Mount Tamborine be removed.

(m)   In the alternate to the Land not being found to be a partnership asset:-

(i)An order that all proper and necessary accounts and enquiries in relation to the Land be taken.

(ii)An order declaring the interests of the parties in the Land.

(iii)      An order for the sale of the Land.

(iv)An order for the distribution of the nett sale proceeds of the Land

(n)    Damages for Conversion.
(o) Interest pursuant to Section 47 of the Supreme Court Act 1995.
(p)    Costs.
(q)    Such further or other Order as the Court considers appropriate.”

1. The causes of action which are being pursued in the proposed statement of claim are, in substance, the same causes of action that have been pursued by the plaintiff since the commencement of the proceeding.  Although the relief which is claimed in the proposed statement of claim is not worded identically to that which is endorsed on the writ of summons, each separate claim for relief which is now sought in the proposed statement of claim can be linked to one of the existing prayers for relief in the writ of summons without any difficulty, except for the relief sought in paragraphs (d) and (m) of the claim for relief in the proposed statement of claim.

1. With respect to paragraph (d), the relief sought of the appointment of a receiver and/or manager of the partnership would have been open to the court to order as part of the ancillary relief sought in paragraph 14 on the writ of summons.  Paragraph (m) of the relief sought in the proposed statement of claim is an alternative claim to paragraph (l) which seeks an order for removal of the caveat registered on the land.  The court could make the order sought in paragraph (l) (which is equivalent to paragraph 9 on the writ of summons) only if the plaintiff proved that he was beneficially entitled to the ownership of the land.  That relief raises the issue of the beneficial ownership of the land.  The alternative relief sought in paragraph (m) would be relevant, if a finding were made instead that the land were held beneficially for each of the plaintiff and the defendant in whatever proportions were supported by any findings that could be made, as a result of a constructive trust.  That relief was expressly sought in the amended statement of claim which was struck out on 26 July 2002.      

1. It is submitted on behalf of the plaintiff that the defendant is not prejudiced, as the proposed statement of claim informs the defendant succinctly of the case which he is required to meet in relation to the partnership and the land which has remained the subject matter of the proceeding.

1. The defendant has not raised any specific prejudice as a result of the proposed statement of claim not being filed and served by 28 April 2003. 

Arguments in favour of refusing leave

1. The defendant put forward oral arguments at the hearing on 25 July 2003 and relied on his affidavit filed by leave on that date to oppose the leave sought by the plaintiff. 

1. The defendant argued that the whole proceeding was a nullity, as the writ of summons did not comply with the Rules of the Supreme Court, as the prayers for relief were prefaced by the words “The plaintiff seeks” rather than the words “The plaintiff claims”.  Listing the prayers for relief after the opening words “The plaintiff seeks” amounts to endorsement of the plaintiff’s claims, as required by O 6 r 1.  The defendant’s contention that the proceeding is a nullity cannot be maintained. 

1. The defendant has also raised the delays by the plaintiff in putting his pleadings in order.  On any view, there have been delays in this proceeding, because it was commenced on 29 March 1996.  The very matters which are the subject of the plaintiff’s claims, namely the partnership and the land, are also in substance the subject of relief claimed by the defendant in the counterclaim.  Notwithstanding the delays, there remains a subsisting dispute between the parties which needs to be resolved. 

1. The defendant raises many matters in his affidavit filed by leave on 25 July 2003 which traverse some aspects of the history of the proceeding from the defendant’s viewpoint and his complaints about the plaintiff’s legal representatives.  Ultimately these are not matters that are relevant to the subject application.  The defendant seeks to show by his affidavit that the plaintiff’s claims are “demonstrably false and his entire case is a house of cards without foundations”.  This is done as a matter of assertion and not by showing, as a matter of law, that the claims are not maintainable.  The defendant seeks to have the merits of the plaintiff’s claims determined on a summary basis, without the evidence being heard and tested, which is not appropriate on an application of this nature.

1. In view of the claims that have been consistently made by the plaintiff in the proceeding, reflected by the relief claimed in the writ of summons, there does not appear to be any prejudice caused to the defendant in respect of the loss of any limitation defence, if the proposed statement of claim is now filed. 

Conclusion

1. The decision to allow the plaintiff to replead was made for the first time on 24 March 2003, when I struck out the amended statement of claim filed on 26 July 2002 and gave leave to replead.  What has occurred in this proceeding since 24 March 2003 does not justify refusing the plaintiff the leave which is sought to filing and serving the proposed statement of claim that was made available on 16 May 2003 instead of 28 April 2003, as ordered.  On considering all the relevant factors, the balance favours giving the plaintiff the opportunity to put his pleading in order.

1. As the defendant has had the benefit of a copy of the proposed statement of claim since the hearing on 16 May 2003, in order to contain costs for both parties the orders which I will make are:

1.The plaintiff be given leave to file the Substitute Further Statement of Claim which was made Ex 1 at the hearing on 16 May 2003 as his statement of claim in this proceeding.  

2.Service of the Substitute Further Statement of Claim be deemed to have been effected on the defendant on the date of publication of these reasons for judgment.

1. Although I have not struck out the amended defence and counterclaim filed on 18 September 2001, I have observed that it is objectionable and, on any view, the defendant will need to replead to make his defence and counterclaim responsive to the plaintiff’s current pleading.  Having regard to the history of this proceeding, it would be realistic to allow the defendant 2 months for that purpose.  I will, however, hear submissions from the parties as to what direction it is appropriate to make in relation to the amendment of the defendant’s defence and counterclaim.

1. As it was necessary for the plaintiff to replead, because of the form of the amended statement of claim filed on 26 July 2002, I am not inclined to order costs in favour of the plaintiff.  As the defendant was self-represented, it may be appropriate to order that there be no order as to costs of the application filed on 12 May 2003.  I will hear submissions from the parties on the question of the costs of the application.