Colombini v De Berigny

[2021] NSWSC 374

Supreme Court

New South Wales

Medium Neutral Citation:

Colombini v De Berigny [2021] NSWSC 374

Hearing dates:

31 March 2021

Date of orders:

16 April 2021

Decision date:

16 April 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Dismiss the first defendant’s notice of motion filed on 15 February 2021 (the Summary Dismissal Application) with costs.

2. Give leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) for the plaintiff to file the amended statement of claim and amended defence to cross-claim, the subject of the plaintiff’s notice of motion filed on 3 March 2021; and give leave pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff to join National Australia Bank Ltd as the second defendant to the proceedings.

3.   With the consent of the plaintiff, order the plaintiff to pay the first defendant’s costs thrown away by reason of the amendment to the statement of claim; but otherwise order the first defendant to pay the plaintiff’s costs of the Amendment Application.

4.   Direct the plaintiff/cross-defendant to file the amended statement of claim and amended defence to cross-claim by 20 April 2021.

5.   Dismiss with costs the first defendant’s notice of motion filed on 19 February 2021 (the Defendant’s Subpoena Application).

6.   Grant the plaintiff access to the documents produced on the subpoenas and notice to produce the subject of the Defendant’s Subpoena Application, save in respect of documents produced by Abetz Curtis over which legal professional privilege is claimed by the first defendant.

7.   Direct that, if the first defendant seeks to maintain a claim for legal professional privilege over any documents produced on subpoena by Abetz Curtis, then the first defendant file and serve within 14 days of these orders an affidavit listing the documents over which privilege is claimed and the facts and circumstances by reference to which privilege is claimed, so that any dispute as to the claim of privilege can be determined.

8.   Set aside the subpoenas filed by the first defendant on 4 March 2021 and addressed to Australia and New Zealand Banking Group Ltd and Commonwealth Bank of Australia, without prejudice to the first defendant’s ability to seek leave to issue more narrowly confined subpoenas addressed to the particular issues in dispute in the proceedings.

9.   Order the first defendant to pay the plaintiff’s costs of the Plaintiff’s Subpoena Application.

10.   List the matter for directions before me on 11 May 2021 at 8.30am.

Catchwords:

CIVIL PROCEDURE – Summary disposal

CIVIL PROCEDURE – Originating process – Amendment

CIVIL PROCEDURE – Subpoenas – Whether legitimate forensic purpose or impermissible fishing expedition – claim for privilege

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 58, 64

Evidence Act 1995 (NSW), s 118

Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 13.4, 33.4

Practice Note SC Eq 11

Cases Cited:

ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186

Alister v R (1983) 50 ALR 41; [1984] HCA 85

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65

Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243

Briginshaw v Briginshaw (1938) 60 CLR 336

Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94

CBX2 Pty Ltd v National Australia Bank [2015] NSWSC 943

Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) (1997) 37 ATR 432; [1997] FCA 1504

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Farmwide Pty Ltd v Commonwealth of Australia [2016] ACTSC 17

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69

GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266

Gunns Ltd v Marr [2005] VSC 251

Harman v Secretary of State for the Home Department [1983] 1 AC 280

HFPS Pty Ltd (Trustee) v Tamaya Resources Ltd (in Liq) (No 2) [2016] FCA 446

Horton v Jones (No 2) (1939) 39 SR (NSW) 305

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

ICAP Pty Ltd v Moebes [2009] NSWSC 306

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

Jonesco v Beard [1930] AC 298

Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Ben’s of Australia) (1994) 126 ALR 58

Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303

McGuirk v University of New South Wales [2009] NSWSC 1424

Meckiff v Simpson [1968] VR 62

Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591

Ng v Cheng [2019] NSWSC 280

Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 100

Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep)

Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115

R v Saleam (1989) 16 NSWLR 14

Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320

Rinehart v Rinehart [2018] NSWSC 1102

Shelton v National Roads and Motorist Association Ltd (2004) ACSR 278; [2004] FCA 1393

Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (a Firm) [2015] FCA 1098

Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103; [1989] FCA 340

Wavetrain Systems AS v Next Generation Rail Technologies SL [2019] FCA 350; (2019) 369 ALR 120

White v Overland [2001] FCA 1333

White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696

Wride v Schulze [2004] FCAFC 216

Young v Tieco International (1995) 182 LSJS 367

Texts Cited:

Practice Note SC Eq 11

Category:

Procedural rulings

Parties:

Alessandro Colombini (Plaintiff)
Caitilin de Berigny (First Defendant)

Representation:

Counsel:
A di Francesco (Plaintiff)
C de Berigny (Self-represented First Defendant)
Solicitors:
NJ Papallo Lawyers (Plaintiff)

File Number(s):

2020/00285303

Publication restriction:

Nil

Judgment

1. HER HONOUR: Before me for hearing on 31 March 2021 were four separate notices of motion in proceedings commenced initially in the Real Property List by the plaintiff (Alessandro Colombini) against the first defendant (Caitilin de Berigny), namely:

1. a notice of motion filed by Dr de Berigny on 15 February 2021 seeking orders for the summary dismissal pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) of the claims for relief in prayers 1, 2, 6, 7 and 12 (as to which see below) in the statement of claim filed by Mr Colombini on 2 October 2020 (the Summary Dismissal Application);

2. a notice of motion filed by Dr de Berigny on 19 February 2021 seeking to set aside a number of subpoenas to third parties as lacking a legitimate forensic purpose and being an impermissible fishing expedition (and that, in respect of one of those subpoenas, the recipient (Abetz Curtis Lawyers (Abetz Curtis)) be excused from compliance on the basis that the documents are privileged pursuant to s 118 of the Evidence Act 1995 (NSW) (the Defendant’s Subpoena Application);

3. a notice of motion filed by Mr Colombini on 3 March 2021 seeking leave, pursuant to s 64 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), to amend his statement of claim and defence to cross-claim and leave pursuant to r 6.24 of the UCPR to join the National Australia Bank Ltd (NAB) as the second defendant to the proceedings (the Amendment Application); and

4. a notice of motion filed by Mr Colombini on 18 March 2021 seeking, pursuant to r 33.4 of the UCPR, to set aside subpoenas filed by Dr de Berigny on 4 March 2021 and addressed to the Australia and New Zealand Banking Group Ltd (ANZ) and the Commonwealth Bank of Australia (CBA) (the Plaintiff’s Subpoena Application).

2. Some parts of the relief sought in the above notices of motion were no longer pressed by the time of the hearing of those motions, as follows.

3. As to the Summary Dismissal Application, Dr de Berigny did not press the alternative relief there claimed (namely, the production of documents relating to an alleged payment by Mr Colombini of $560,000) (T 29.33-48).

4. As to the Defendant’s Subpoena Application, apart from the five subpoenas there identified, Dr de Berigny also wishes to set aside a subpoena issued by Mr Colombini to NAB and a notice to produce dated 22 February 2021 that Mr Colombini served on Dr de Berigny (T 30.21-7). Mr Colombini did not oppose these being dealt with as part of the Defendant’s Subpoena Application without any amendment to the notice of motion.

5. As to the Amendment Application, this notice of motion sought (at [3]) to set aside Dr de Berigny’s subpoena addressed to Mr Colombini’s ex-wife (filed on 25 February 2021) but that prayer for relief is no longer pressed (that subpoena having been answered and general access having been granted on 26 March 2021).

6. In support of (or in resisting, as the case may be) the respective motions, Dr de Berigny read four affidavits, each affirmed on 26 March 2021 (some parts of which were read only as submissions) and two earlier affidavits affirmed by her on 15 and 19 February 2021, respectively. A fifth affidavit also affirmed by Dr de Berigny on 26 March 2021, making serious allegations as to ethical misconduct on the part of Mr Colombini’s legal representatives, was not read on the present applications. Mr Colombini read two affidavits sworn by his solicitor (Mr David John Papallo) on 23 February 2021 and 2 March 2021; and tendered, among other things, the affidavits filed in the substantive proceedings (see Ex A, as being evidence of what has been filed in the substantive proceedings, including what the various deponents have deposed to in the proceedings, rather than as evidence of truth on the current applications).

Background

7. The substantive dispute between the parties arises out of the acquisition in 2019 of a property in Sandy Bay, Tasmania (the Sandy Bay Property). The following is by way of background only and involves no finding as to any disputed questions of fact.

8. For a period between late 2018 and mid to late 2019, Mr Colombini and Dr de Berigny were in a romantic relationship.

9. Mr Colombini contends that, in early 2019, he and Dr de Berigny agreed that they would together purchase a property in Tasmania for investment purposes; and that each would contribute half of the purchase price and each would effectively hold a half interest in the Property (see [8] of the statement of claim). In his affidavit sworn 20 January 2021 (see Ex A in the present proceedings), Mr Colombini has deposed that he and Dr de Berigny had several discussions about the investment and reached an agreement on the terms there set out (Mr Colombini’s affidavit sworn 20 January 2021 at [23]-[25], [30]-[33], [36]). In essence, Mr Colombini claims that the alleged agreement reached with Dr de Berigny in the first half of 2019 was that Mr Colombini would contribute $690,000 towards the purchase of and furnishings for the Sandy Bay Property; and that Dr de Berigny would, in return, hold 50% of the beneficial title of the Property and net rental income on trust for Mr Colombini. Mr Colombini alleges that they agreed to rent out the Sandy Bay Property on Airbnb Australia Pty Ltd (Airbnb).

10. Mr Colombini contends that the agreement regarding the Sandy Bay Property was partly evidenced in March 2019 by a draft agreement that was never signed or redrafted (see his affidavit sworn 20 January 2021 at [38]-[40]; and his further affidavit sworn 3 March 2020 at [6]-[9] in Ex A of the present proceedings).

11. Dr de Berigny denies that she and Mr Colombini had an agreement by which she would hold any part of the Sandy Bay Property or its income on trust for Mr Colombini. Dr de Berigny alleges that any offers she made to Mr Colombini (regarding him having an interest in the Sandy Bay Property now or in the future) were declined by Mr Colombini. Dr de Berigny contends, as I understand it, that during their relationship there was a pattern of gift-giving by Mr Colombini to her and that any amounts contributed by Mr Colombini in relation to the purchase were irrevocable gifts.

12. On 3 March 2019, Dr de Berigny exchanged contracts to purchase the Sandy Bay Property for the sum of $1.28 million. On settlement (which occurred on 2 April 2019), with stamp duty, adjustments and other costs, the settlement amount was some $1.35 million (Settlement Sum). The Sandy Bay Property was registered in Dr de Berigny’s name as sole registered proprietor.

13. Mr Colombini contends that, on 7 March 2019, in payment of the deposit for the purchase of the Sandy Bay Property, Mr Colombini caused the sum of $130,000 to be transferred into the trust account of the vendor’s real estate agent, Fall & Associates Pty Ltd (F&A) (see his affidavit sworn 20 January 2021 at [43], [45]).

14. Pausing here, in the statement of claim as filed, the allegation at [13] is that, pursuant to the alleged agreement with Dr de Berigny, Mr Colombini “made” deposit payments to the solicitors and to the real estate agent equalling half of the purchase price. One of the deposit payments which is particularised is the transfer of $130,000. Mr Colombini says (in his affidavit sworn 20 January 2021, (Annexure AC-15) and in his written submissions at [6]) that he sourced this $130,000 contribution from his company (DB Group Australia Pty Ltd) (DB Group). Dr de Berigny admits the $130,000 payment but pleads that it was an irrevocable gift by Mr Colombini to Dr de Berigny (see her defence at [13(g)]).

15. The particulars of the statement of claim at [13(d)] state that the amount of $560,000 was transferred by Mr Colombini “directly” into Dr de Berigny’s solicitors’ bank account. To anticipate the substance of the Amendment Application, one of the proposed pleading amendments for which leave is here sought is to amend [13] of the statement of claim to read, relevantly, that Mr Colombini made “or caused to be made on his behalf” the said payments. Dr de Berigny opposes this amendment.

16. Mr Colombini now contends that, on 26 March 2019, in part payment towards the Settlement Sum, Mr Colombini caused a sum of $560,000 to be transferred into an account of Dr de Berigny’s solicitor, Abetz Curtis (rather than directly making the payment himself) (see Mr Colombini’s affidavit sworn 3 March 2021 at [6]-[9], [15]-[18], [23] cf his affidavit sworn 20 January 2021 at [43], [47]). Mr Colombini has also served affidavits in reply (from a Mr Marcel Novo and Mr Lorrence Platania) deposing to the transfer of funds in relation to this payment (see Ex A in the present proceedings); in which, in effect, it is said that Mr Colombini invested and deposited funds in a company of Mr Platania (Atris Pty Ltd) and that Mr Platania and Mr Novo, at the direction of Mr Colombini, transferred the sum of $560,000 from Atris Pty Ltd to Abetz Curtis from those funds.

17. Mr Colombini has further deposed (see his affidavit sworn 20 January 2021 at [36]-[37]) that he believed Abetz Curtis was acting both for him and for Dr de Berigny in relation to the Sandy Bay Property conveyance. Abetz Curtis has indicated by email in 2020 that it was only retained by Dr de Berigny (see Dr de Berigny’s affidavit affirmed 19 February 2020, Annexure A).

18. As noted above, settlement of the purchase of the Sandy Bay Property occurred on 2 April 2019. Mr Colombini says that, in order to complete the sale of the Sandy Bay Property, Dr de Berigny borrowed about $570,000 from CBA. Mr Colombini has deposed that he was aware of that loan, and CBA’s security over the Sandy Bay Property, and that he agreed to that occurring; but that he never agreed to any further credit being advanced against the Sandy Bay Property nor to the CBA loan being refinanced (see his affidavit sworn 3 March 2021 at [27]).

19. On settlement, CBA took a registered first mortgage over the Sandy Bay Property (CBA Mortgage).

20. The relationship between the parties ended at some time towards late 2019.

21. On 21 May 2020 and 9 February 2021, respectively, Mr Colombini registered caveats on the title of the Sandy Bay Property claiming the following interest in the Sandy Bay Property: that the registered proprietor (Dr de Berigny) holds 50% of the Property on trust for the benefit of Mr Colombini, as tenants in common; alternatively, that Mr Colombini has an equitable charge or an equitable lien over the whole of the Property securing the sum of $690,000 by virtue of a resulting trust in respect of contributions made by him to the purchase price of the Property in March 2019 in the total sum of $690,000 with the intention that Mr Colombini beneficially own 50% of the Property and, further and in the alternative, by way of constructive trust arising from the contributions made by the plaintiff to the purchase price of the Property in March 2019 in the sum of $690,000 in circumstances where it would be unconscionable for the registered proprietor (the defendant) to retain sole ownership over the legal and beneficial title to the Property (see Mr Colombini’s affidavit sworn 3 March 2021, Annexure A and Mr Papallo’s affidavit sworn 23 February 2021, Annexure A).

22. On 19 June 2020, the CBA Mortgage was discharged with finance borrowed from NAB. On 19 June 2020, NAB lodged a mortgage on the title; and, on 13 August 2020, NAB lodged a caveat on the title. It is noted by Mr Colombini that both of those dealings are unregistered dealings and notations on the title to the Sandy Bay Property. Dr de Berigny, in her written submissions, has stated that she has possession of the certificate of title for the Sandy Bay Property.

23. Mr Colombini says that he was not informed of the discharge of the CBA Mortgage and the interests of NAB in respect of the Sandy Bay Property, and that he only found out about them through his solicitor around 18 February 2021 (see Mr Papallo’s affidavit sworn 23 February 2021 at [5]-[7]). Mr Colombini says that he is unaware how much is owed to NAB in respect of its claimed security.

24. In October 2020, Mr Colombini commenced the present proceedings seeking declaratory and other relief in relation to his claimed interest in the Sandy Bay Property and the rental income from the Property. His claim, at that stage, was put as a claim for moneys had and received or in the alternative for relief based on a resulting or constructive trust.

25. On 13 November 2020, Dr de Berigny filed a cross-claim seeking orders that she is the sole legal and beneficial owner of the Sandy Bay Property and has no liabilities to Mr Colombini.

26. Mr Colombini filed his defence to cross-claim on 8 December 2020.

27. Directions were then made for the service of evidence in the proceedings. Lay evidence in chief was served by Mr Colombini in late January 2021. Lay evidence in reply was served by Dr de Berigny on 1 February 2021.

28. Mr Colombini says, that at the next directions hearing following service of those affidavits (as I understand it, heard online by Darke J – see T 26.35-40), it was foreshadowed that there would be an application to amend the pleadings and a timetable was put in place for the proposed amendments to be sent to Dr de Berigny. It appears that there were a number of versions of the proposed amended statement of claim, for reasons including the omission of an express trust allegation said to have been overlooked by Counsel (see T 26.43) and the discovery that NAB claimed an interest in the Sandy Bay Property (see Mr Papallo’s affidavit sworn 23 February 2021 at [5]).

29. Lay reply evidence was served by Mr Colombini on 3 March 2021. Meanwhile, the Summary Dismissal Application was filed; and various subpoenas and notices to produce were issued (most of those being the subject of one or other of the Subpoena Applications).

7. The interlocutory applications were heard by me on 31 March 2021 with Dr de Berigny appearing via telephone link from outside Sydney.

8. I turn first to the Summary Dismissal Application and then to the related Amendment Application before turning to the respective Subpoena Applications.

Summary Dismissal Application

32. In essence, Dr de Berigny’s Summary Dismissal Application, brought pursuant to r 13.4 of the UCPR, is premised on the proposition that the cause of action pleaded in the statement of claim is based on “perjured and fraudulent material” and that, as a consequence, the integrity of the statement of claim is jeopardised “as any possible outcome pertaining to these reliefs becomes tainted with fraud and the issue of perjury” (T 17.46-T 18.3). On this basis, Dr de Berigny seeks the summary dismissal of the prayers for relief at 1, 2, 6, 7 and 12 of the statement of claim (citing Wavetrain Systems AS v Next Generation Rail Technologies SL [2019] FCA 350; (2019) 369 ALR 120 at [24]; Jonesco v Beard [1930] AC 298 at 301-302 per Lord Buckmaster).

33. The (very serious) allegations made by Dr de Berigny of perjury and fraud arise from the perceived inconsistency between the allegations made in the statement of claim and the defence to cross-claim, namely, that the relevant payments were made or transferred “directly” by Mr Colombini, and the later affidavit material to the effect that the payments were transferred by others at his request. For the alleged claims by Mr Colombini that he directly made the payments, see: the statement of claim filed on 2 October 2020 at [13(d)]; the defence to cross-claim filed on 8 December 2020 at [5(i)], particular 4; and Mr Colombini’s affidavit sworn 20 January 2021 at [47], deposing to a payment “made” by him and annexing a copy of the relevant bank slip at Annexure AC-16) (the First Set of documents). For the claims by Mr Colombini that the impugned payments were transferred at his request, see: Mr Colombini’s affidavit sworn 3 March 2021; Mr Lorrence Platania’s affidavit sworn on 25 February 2021; and Mr Marcel Novo’s affidavit sworn 25 February 2021 (the Reply Evidence).

34. Dr de Berigny says that the Reply Evidence relates to money being exchanged among multiple bank accounts of incorporated companies and an off-shore account; and that they are inconsistent with, and contradict, the statements made in the First Set of documents.

35. On this basis, Dr de Berigny submits that one of these two sets of sworn documents must contain falsehoods; hence, Dr de Berigny maintains that the issue of perjury arises. Dr de Berigny argues that the Reply Evidence “presents a situation in which the First Set becomes a means and an attempt to cloak activities that may be considered fraudulent and illegal as defined by the ATO, Austrac and Proceeds of Crime Act 2002, activities described in the [Reply Evidence]” (T 17.38-42). Dr de Berigny argues that the Reply Evidence (which she invites me not to accept – see below) tends to support the conclusion that the First Set of evidence was purposely made to cover up these activities, which she says constitutes the definition of fraud. Dr de Berigny contends that admission of the Reply Evidence of documents (and it should here be recalled that at this stage none of Mr Colombini’s affidavits nor those of Mr Platania and Mr Novo, has been formally read) technically establishes that the First Set is fraudulent and that it follows that the First Set is perjured and fraudulent material in support of Mr Colombini’s cause of action for the relief sought in prayers 1, 2, 6, 7 and 12 of the statement of claim.

36. Dr de Berigny also contends that the Reply Evidence puts into question the credibility of the evidence thus far tendered by Mr Colombini to the court; and amounts to an admission that the First Set “was intentionally put in place to mislead and undermine the court and administration of justice” (see Dr de Berigny’s further affidavit affirmed 26 March 2021 in support of the Summary Dismissal Application at [18]).

37. Complaint is also made as to the filing of the Reply Evidence (albeit that this is in the form of reply evidence that appears to have been filed pursuant to directions made by the court) in that it is said that the delay in filing these documents is prejudicial “as it is a surprise, will cause further delay, and grievously further complicate these proceedings and the real issues” (Dr de Berigny here clearly invoking the statutory mandate imposed by s 56 of the Civil Procedure Act as to the overriding purpose of the Civil Procedure Act and of rules of the court in their application to civil proceedings) (see Dr de Berigny’s further affidavit affirmed 26 March 2021 in support of the Summary Dismissal Application at [19]).

38. Further, Dr de Berigny contends that, had this evidence been pleaded in the statement of claim, then “the nature of its contents, activities that may be considered fraudulent and illegal as defined by the ATO, Austrac and Proceeds of Crime Act 2002, will result in any outcome tainted with fraud and illegality” (see Dr de Berigny’s further affidavit affirmed 26 March 2021 in support of the Summary Dismissal Application at [20]).

39. Somewhat inconsistently, it would seem, in light of the reliance placed by Dr de Berigny on this material as evidencing that the First Set of documents amounts to perjured and fraudulent material, Dr de Berigny, in her affidavit affirmed 26 March 2021 in support of the Summary Dismissal Application, sought (at [21]) that the Reply Evidence be disregarded in the determination of her Summary Dismissal Application. (As I understand it, the thrust of that submission is that the Summary Dismissal Application should be determined as if the amendments now sought to be made to the pleadings are not made – and, so, the pleaded claim remains one that Mr Colombini made directly the relevant payments.)

40. In response to Dr de Berigny’s Summary Dismissal Application, Mr Colombini points to the principles applicable on a summary dismissal application (as summarised in Ng v Cheng [2019] NSWSC 280 at [20]-[24]); and contends that the motion should be dismissed with costs.

41. It is said that, taking the allegations pleaded in the statement of claim at their highest, what is alleged is that there was an agreement that Dr de Berigny would hold half of the Property on trust for Mr Colombini and that Mr Colombini transferred the amounts of $560,000 on 26 March 2019 directly into the Abetz Curtis bank account (see statement of claim at [8]-[13]).

42. It is submitted that Dr de Berigny has implicitly accepted that the sum of $560,000 was deposited by Mr Colombini, as he deposes, and was used as part of the Settlement Sum. This submission is based on Dr de Berigny’s email dated 4 March 2021 to Mr Colombini’s solicitors serving her subpoenas to CBA and ANZ, in which Dr de Berigny refers to having a responsibility to find out to the full extent “whether money put towards [her] home” was the proceeds of illegal activities involving the incorporated entities identified in the Reply Evidence, and her similar submissions to the Court for leave to issue subpoenas to Mr Platania and Mr Novo (see Mr Papallo’s affidavit sworn 8 March 2021, Annexure A).

Determination

43. The relevant prayers for relief the subject of the Summary Dismissal Application are as follows:

1.   A declaration that the sum of $690,000.00 is money had and received by the defendant to the use of the plaintiff and the defendant is obliged to repay the said sum to the plaintiff.

2.   An order that the defendant pay the plaintiff the amount he deposited into the defendant’s solicitors’ and real estate agent’s accounts, that amount being $690,000.00 in total.

…

6.   A declaration that the first defendant acquired her interest in the Investment Property with $690,000.00 from the plaintiff.

7.   A declaration that one-half of the Investment Property registered in the name of the defendant is held by the defendant on trust for the plaintiff.

…

12.   Costs.

44. The principles on a summary dismissal application are well known. There is a high threshold to be satisfied. The test generally applied on applications for summary disposal of part or all of proceedings is that set out in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 128-9 (General Steel). It is necessary for there be a very clear case before proceedings will be summarily dismissed (General Steel at 129; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 (Dey) at 91). As Dixon J (as his Honour then was) noted in Dey at 91, “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process”.

45. Taking the allegations made in the statement of claim (and for this purpose assuming there to be no amendment to the pleaded claims) at their highest, it cannot possibly be said that, if those allegations were established, then there would be no tenable cause of action for the relief sought by Mr Colombini.

46. Insofar as Dr de Berigny’s application rests on her contention that the Reply Evidence in some way establishes the falsity of the First Set of documents (i.e., that there is an inconsistency between Mr Colombini making a payment directly to the relevant bank account and Mr Colombini causing such a payment to be made on his behalf), such as to warrant a conclusion that there has been perjury and fraud (and that it would be an abuse of process to permit the claim to proceed), I cannot possibly make such a finding on the material before me and without a hearing on the merits.

47. Apart from the fact that allegations of perjury (a criminal offence) are extremely serious and would need to be proved on the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336), this is an interlocutory application – the explanation for the perceived inconsistency or disconformity in the material cannot here be tested; and the possibility of an explanation inconsistent with fraud cannot be excluded.

48. Insofar as Dr de Berigny complains that she does not know what case she has to meet (because she does not know which version of the evidence is “false”), it was made clear in oral submissions on the present applications that Mr Colombini’s evidence will be that the impugned payments were made by him (in the sense that it was his money) through the transfers made with the assistance of Mr Platania and Mr Novo. Understood in that fashion, the perceived inconsistency goes largely to what is meant by “made” and “directly”. If that goes to the credit of the witness or witnesses, that is something to be tested at the final hearing.

49. Accordingly, applying the General Steels standard, the Summary Dismissal Application cannot succeed and I will dismiss it with costs.

Amendment Application

50. Mr Colombini seeks to amend his defence to cross-claim in the form that appears at Annexure C to Mr Papallo’s affidavit sworn 23 February 2021. It is said that the amendments seek to bring the defence in line with the evidence served by Mr Colombini in order to address a perceived distinction drawn by Dr de Berigny between renting the Sandy Bay Property and sharing through Airbnb (and to correct typographical errors). Mr Colombini submits that there is no relevant prejudice to Dr de Berigny from the amendment of the defence to cross-claim and that the amendments assist to determine the real questions in dispute and correct typographical errors.

51. As to the proposed amended statement of claim (see Mr Papallo’s affidavit sworn 23 February 2021 at Annexure C), these amendments are pressed on the basis that Mr Colombini seeks fully to plead the causes of action against Dr de Berigny, to add claims of estoppel, and to adjust the relief sought against Dr de Berigny (including seeking an order for judicial sale of the Sandy Bay Property). Mr Colombini also seeks to join NAB as the second defendant and seek declarations clarifying the priorities between the interests of Mr Colombini and the claimed security of NAB.

52. Mr Colombini submits that the amendments regarding Dr de Berigny should be allowed in order for the Court to determine the real questions raised by the dispute; and to bring the pleading more in line with the evidence (i.e., the Reply Evidence).

53. As to the joinder of NAB, Mr Colombini submits that NAB is a necessary party to the proceedings in order to clarify the legal and equitable interests over the Sandy Bay Property and for the Court to consider an order for judicial sale. It is noted that Mr Colombini and his solicitors only discovered the claimed interests of NAB in or around 18 February 2021 (see Mr Papallo’s affidavit sworn 23 February 2021 at [5]-[7]). Mr Colombini submits that the joinder and amendments regarding NAB should be allowed in order, again, to determine the real questions raised by the dispute and to avoid a multiplicity of proceedings.

Dr de Berigny’s submissions regarding the Amendment Application

54. Dr de Berigny cavils with the following propositions set out in the affidavit sworn 23 February 2021 of Mr Papallo.

55. First, as to his reference to “evidence thus far obtained” (at [3] of that affidavit), Dr de Berigny says that it is very unclear as to the evidence on which Mr Colombini is relying. This seems to be a complaint (to which I have referred above) that Dr de Berigny does not know the case she has to meet because she does not know which version of the affidavit material is “false”. I have already considered this complaint. Any confusion has now been clarified in oral submissions.

56. Second, as to the reference to typographical errors, Dr de Berigny says that there is only one such error (which she says is as to a date contained in [9] of the statement of claim) and that there is no typographical error in the defence to cross-claim. Dr de Berigny submits that the typographical error in the statement of claim (2020 as opposed to 2019) is not material and she considers it insufficient to justify an amended statement of claim. (Pausing there, if it is accepted to be not material, then there could be no possible prejudice to Dr de Berigny in permitting such an amendment.)

57. Third, Dr de Berigny takes issue with the need to join NAB as a defendant. Dr de Berigny says that the relief claimed against NAB in the proposed amended statement of claim (see prayer 8) cannot be carried out because NAB is not in possession of the title deed (and, hence, the proposed amended pleading is defective in this regard).

58. Pausing here, the relief sought in prayer 8 and 8A of the proposed amended statement of claim is as follows (the proposed pleading amendments are marked up in revision mode for ease of reference and in accordance with the required practice for amended pleadings):

8.   Further, and in the alternative, An order that the first defendant execute and deliver to the plaintiff a conveyance a transfer in registrable form of one-half of the Investment Property in the name of the plaintiff and the first and second defendants do and cause all things required to register that transfer on title such that the name of the plaintiff is added to the certificate of the title as one-half legal title holder, as tenants in common, and either:

(a)   not subject to the mortgage of the second defendant over the Investment Property; or

(b)   alternatively, is subject to the mortgage of the second defendant over the Investment Property but only up to such sum as the Court determines and thereafter not subject to the mortgage of the Second Defendant.

8A.   An order that the first defendant pay to the plaintiff any sum which the plaintiff is obliged to pay as stamp duty in respect of the transfer in prayer for relief 8 above.

8B.   Further, and in the alternative, a declaration that the plaintiff holds an equitable charge, or in the alternative an equitable lien, over the whole of the Investment Property, which secures a debt owed to the plaintiff by the first defendant in the sum of $690,000 plus interest pursuant to section 100 of the CPA or such other sum as the Court determines, and which either:

(a)   ranks ahead of, and in priority to, the mortgage of the second defendant over the Investment Property; or

(b)   alternatively, is subject to the mortgage of the second defendant over the Investment Property and ranking behind it but only up to such sum as the Court determines and thereafter ranks ahead of, and in priority to, the mortgage of the Second Defendant.

8C.   Further, and in the alternative, an order for judicial sale of the whole of the Investment Property upon such terms, conditions and ancillary orders as the Court considers appropriate.

8D.   Further, and in the alternative, an order that the Investment Property be sold by the plaintiff (or such other fit and proper person(s) as the Court may appoint), to be appointed trustee for sale, to sell the Investment Property either by public auction, or if not sold at public auction then by private treaty, on such terms as the Court may determine and the proceeds of sale distributed as the Court may determine.

8E.   By way of order ancillary to prayers for relief 8C and 8D above, the first defendant is to deliver up vacant possession of the Investment Property to the plaintiff (or such other fit and proper person(s) as the Court may appoint to sell the Investment Property) within 28 days or within such other time as the Court considers appropriate.

8F.   Further, and in the alternative, by way of order ancillary to prayers for relief 8C and 8D above, leave be granted to the plaintiff to issue a Writ of Possession forthwith.

8G.   Further, and in the alternative, equitable compensation.

59. Dr de Berigny argued in oral submissions that it was unlikely that NAB would pursue the issue of an unsecured loan because it was currently a very small amount (see T 22.41-3). That, however, is not to the point. If the relief sought by Mr Colombini might potentially affect the rights and interests of NAB as mortgagee (as it undoubtedly may), then it is clear that NAB is a necessary and proper party to be joined to the proceedings (whether or not Dr de Berigny thinks it unlikely that NAB would seek to enforce its security or pursue the issue of its unsecured loan) (see John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19).

60. Leaving aside the question of joinder of NAB (which to my mind cannot reasonably be opposed given that its interests may obviously be affected by the outcome of the litigation, not least because Mr Colombini seeks an order for judicial sale of the Sandy Bay Property), Dr de Berigny raises various matters in opposition to the grant of leave to amend, relying on the well-known principles in AonRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon) and making various criticisms of the proposed amended pleading.

61. In her submissions, Dr de Berigny points to the amendments that she identifies as being clearly intended to address any potential inconsistency in the pleading having regard to the Reply Evidence (see the proposed amendments to [13] of the statement of claim and [5(i)] of the defence to cross-claim). Dr de Berigny describes this as “an attempt to circumvent the plaintiff’s culpability regarding the falsehoods” addressed in her affidavit affirmed 26 March 2021 in support of her Summary Dismissal Application (T 19.12-3). It is said that permitting these proposed amendments will allow admittance of material contradictory to the First Set of documents referred to above and that admittance of this material will conclusively establish these proceedings as tainted by fraud and perjury. Thus, Dr de Berigny says that the proposed amended statement of claim and amended defence to cross-claim will become vehicles for fraud and perjury (T 19.16-9). (I do not accept this contention for the reasons set out already.)

59. Second, Dr de Berigny complains that the “extensive” delay (of five months) in bringing changed pleadings and withdrawing pleadings is unaccounted for in the affidavit in support of the Amendment Application (T 19.21-3) and that if such delay is allowed it will cause her further economic hardship (though that further economic hardship is not identified). Dr de Berigny maintains that any amendment or additions to the pleadings should have been made through a reply and the defence to cross-claim at a much earlier time. I do not accept that the delay is so extensive as to warrant refusal of leave to amend the pleadings, given that the application for leave to amend was foreshadowed promptly after the issues raised in Dr de Berigny’s affidavit evidence as to the source of the funds in question.

60. Third, Dr de Berigny says that the proposed amended pleadings contain amendments that are “embarrassing” and very difficult to defend. In that regard, Dr de Berigny makes a series of complaints (see her affidavit affirmed 26 March 2021 in response to the Amendment Application at [14]-[22]), namely:

1. that various paragraphs do not contain material facts but instead are subjective views ([2A], [4], [5], [6], [8], [9], [10], [17], [18], [19], [20], [21], [22] and [23]);

2. that various paragraphs are also not material facts but are “uncommunicated views and state of mind” which it is impossible to defend ([6], [7], [11], [12], [13B], [15] and [17]);

3. that various paragraphs contain objectionable views “rolled up in material facts” ([5], [9], [12], [13], [15B], [17] and [23]);

4. that various paragraphs contain excessive alternatives which are confusing and intermixed ([15G], [16], [17], [18], [22] and [23]);

5. that various paragraphs contain irrelevant and/or vague allegations that she finds difficult to defend ([2A], [13A], [14], [14A], [15B], [15C], [15D], [15G], [17], [18], [20], [21] and [22]);

6. that various paragraphs contain multiple meanings “rolled up in material facts” which she finds are difficult to address and defend ([9], [13] and [21];

7. that various paragraphs contain expressions that she finds difficult to defend ([2], [5], [8]); and

8. that various paragraphs are too long and become unintelligible, which she finds are difficult to defend ([9], [10], [15G], [16], [17], [18], [21], [22], [23].

64. As can be seen from the above, there are overlapping criticisms of a number of paragraphs of the proposed amended pleadings (and in some cases the complaints concern paragraphs of the original pleading to which Dr de Berigny has already been able to respond in her existing defence). I will address the perceived pleading defects paragraph by paragraph in due course.

65. As to the prejudice that Dr de Berigny says wilI be suffered if the amendments are permitted, it is submitted by Dr de Berigny that preparing an amended defence and a reply is futile (which presumably is a contention that the amended allegations are bound to fail) and prejudicial as it is oppressive (though in what way it is oppressive is not identified). It is also said that the amendments are prejudicial on the basis that “there are significant unquantifiable implications to the proceedings already afoot” (a submission that is not readily intelligible). Dr de Berigny submits that the proposed amendments do not serve to facilitate the court’s overriding purpose (see s 56 of the Civil Procedure Act), and instead will only serve to “increase complications” (see her affidavit affirmed 26 March 2021 in response to the Amendment Application at [23]-[25]).

66. It is submitted by Dr de Berigny that, had the proposed amendments been included in the original claim, the above arguments would also “pose a threat of their likelihood of being struck out”.

Determination

67. Section 64(2) of the Civil Procedure Act provides that:

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

68. Section 58 provides that:

(1)   In deciding--

(a)   whether to make any order or direction for the management of proceedings, including--

(i)   any order for the amendment of a document, and

(ii)   any order granting an adjournment or stay of proceedings, and

(iii)   any other order of a procedural nature, and

(iv)   any direction under Division 2, and

(b)   the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

(2)   For the purpose of determining what are the dictates of justice in a particular case, the court--

(a) must have regard to the provisions of sections 56 and 57, and

(b)   may have regard to the following matters to the extent to which it considers them relevant--

(i)   the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)   the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii)   the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),

(v)   the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi)   the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii)   such other matters as the court considers relevant in the circumstances of the case.

69. Section 56 provides that:

(1)   The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)   The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)   A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4)   Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)--

(a)   any solicitor or barrister representing the party in the proceedings,

(b)   any person with a relevant interest in the proceedings commenced by the party.

(5)   The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6)   For the purposes of this section, a person has a

“relevant interest” in civil proceedings if the person--

(a)   provides financial assistance or other assistance to any party to the proceedings, and

(b)   exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

70. As noted above, Dr de Berigny relied on the guiding principles articulated in Aon, where it was said (at [111] per Gummow, Hayne, Crennan, Kiefel and Bell JJ that):

111.   An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

71. Reference was also made by Dr de Berigny in this regard to the following authorities: Gunns Ltd v Marr [2005] VSC 251 (Gunns v Marr) at [14]-[15]; McGuirk v University of New South Wales [2009] NSWSC 1424 (McGuirk); Meckiff v Simpson [1968] VR 62 at 70; White v Overland [2001] FCA 1333 at [4]; Shelton v National Roads and Motorist Association Ltd (2004) ACSR 278; [2004] FCA 1393 (Shelton v NRMA) at [18]; Farmwide Pty Ltd v Commonwealth of Australia [2016] ACTSC 17 per Burns J; Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep); Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [161].

72. Dr de Berigny complained that there was a lack of explanation for the delay. An explanation for that delay was, however, proffered (see the affidavit sworn 23 February 2021 by Mr Papallo), albeit that Dr de Berigny has criticised that explanation in her submissions. Nevertheless, the late discovery by Mr Colombini and his solicitors of NAB’s claimed interest in the Sandy Bay Property amounts to a reasonable explanation for the delay in the application to join NAB as a party. As to the amendments in relation to the inclusion of an allegation of an express trust, the explanation (albeit from the bar table) was that this had been overlooked in the pleading. Given that it is predicated on the agreement the subject of allegations made in the initial pleading, and that there were already allegations in that pleading arising out of the alleged agreement that would support the pleaded claims for a resulting or constructive trust, breach of fiduciary duties and for moneys had and received, it seems apparent that what has happened is that there has been a more concerted focus on the causes of action to which the underlying alleged facts give rise and that this is now sought to be properly articulated in the pleading.

73. As to the complaint of delay, this is by no means a case of delay such as was before the High Court in Aon. Proceedings were here commenced in October 2020; the amendment to the pleading was foreshadowed in February 2021 and the Amendment Application was filed on 3 March 2021. Moreover, the Amendment Application is here being dealt with relatively promptly (cf the position in Aon) and it cannot be said (in my opinion) that the amendments will be likely to cause extensive delay in the ultimate hearing of the matter.

74. As to the alleged prejudice that will be occasioned by the amendments, that was not identified other than by reference to unidentified further economic hardship and an increase in the complications of the matter. As to the former, an undertaking has been proffered as to the costs thrown away by reason of amendment to the pleadings. I accept that the remedy of costs is not a panacea for all ills but it is adequate in the present case where no other financial prejudice has been identified. As to the latter, it is difficult to see, as a practical matter, the added “complications” of NAB’s joinder, since it is to be joined simply as a party whose interests may be affected by the proposed relief. No doubt it might seek to make submissions in due course about its position. However, there is no suggestion that it was involved in the matters the subject of complaint in any way that gives rise to a direct claim for relief against it. Regarding the complaint as to the futility of NAB’s joinder, I have already dealt with this. It is not to the point that its interest is as an unregistered mortgagee and that it does not hold the certificate of title.

75. I do not consider that the amendments are likely to occasion any extensive delay in the matter being ready for a hearing – and any such hearing is likely not to be for a few months depending on the estimated duration of the hearing in any event.

76. As to the allegation that this perpetuates a fraud in some way, I have already dealt with that above. I do not accept that such an allegation has been established nor could it be on an interlocutory basis.

77. As to the perceived pleading deficiencies, I address in turn below each of the paragraphs of the proposed pleading about which complaint is made (identifying after the paragraph the particular category or categories of complaint which is here made by reference to the categories enumerated above).

78. In Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Mason CJ and Gaudron J noted at [18], in a passage cited by Ipp JA in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 at [422], that the function of pleadings is:

… to state with sufficient clarity the case that must be met …. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

79. In Young v Tieco International (1995) 182 LSJS 367 (which was approved by McDougall J at first instance in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136 at [46]), Lander J said (at 370) that “[a] Court ought to approach a consideration of the adequacy of a pleading by seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise”.

80. Pleadings must state all of the material facts that are necessary to constitute a complete cause of action and the relief sought (see Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41-591; Wride v Schulze [2004] FCAFC 216 at [25]).

81. Leave will not be granted to allow an amendment if it would be liable to be struck out had it appeared in the original pleading (see Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 310; McGuirk at [18]). Leave to amend will, therefore, not be granted in respect of a pleading, or amendment, likely to be struck out as embarrassing (Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu (a Firm) [2015] FCA 1098 at [142]-[143] per Gleeson J; Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 at [21] per Gilmour and Foster JJ; ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186 at [29] per Croft J; Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320 at [21], [23] per Kenny J). In HFPS Pty Ltd (Trustee) v Tamaya Resources Ltd (in Liq) (No 2) [2016] FCA 446, for example, Foster J said (at [56]) that “[i]t would be a wrong exercise of the Court’s discretion to allow an amendment for which there was no arguable basis in fact”.

82. It is relevant here to note that what is meant by an embarrassing pleading, in the context of an application such as the present, relates to whether the pleading can serve the function of a pleading under the rules; i.e., whether it puts the defendant properly on notice of the real substance of the claim made against it and enables the defendant to know what case it is that the defendant has to meet. A pleading is embarrassing if it is unintelligible, ambiguous or imprecise in its identification of material factual allegations so as to deprive the opposing party of proper notice of the real substance of the claim or defence (see Gunns v Marr at [14]-[15]) or if it contains inconsistent, confusing or irrelevant allegations (see Shelton v NRMA at [18]).

83. With the above in mind, I turn to the particular complaints made about the proposed amended pleading. (The revision mode indicates the proposed amendments and I have added a reference to the applicable categories of complaint are as set out at [63] above.)

Paragraph 2

[2]   At the relevant time, the first defendant resided in the state of New South Wales (e.g. Balmain). The first defendant may now purports to reside at the Investment Property in Tasmania.

[category (7) at [59] above]

84. Presumably, complaint is made as to the expression “purports to reside”. I would have thought that this was readily comprehensible as meaning that Dr de Berigny either resides or contends (or holds out to others) that she resides at the Sandy Bay Property in Tasmania. If there is truly any doubt as to what is here meant, Dr de Berigny can seek particulars of what is contended.

85. If the complaint is as to the words “Investment Property”, these appeared in the original statement of claim to which Dr de Berigny was able to plead without any apparent difficulty. Moreover, “Investment Property” is here used as a defined term. Dr de Berigny takes issue with the fact that the use of the term insinuates that it was an investment property (which she denies). The allegation that the Property was acquired as an investment is expressly put at [12] and will arise for determination at the trial. However, the expression “Investment Property” is defined. Nothing can be insinuated from the label so used and it is therefore unobjectionable.

Paragraph 2A

2A.   The second defendant:

(a)   is, and was at all material times, a duly incorporated company able to sue and be sued in and by its corporate name and style; and

(b)   since about 19 June 2019 has held an unregistered discharge of mortgage in respect of a mortgage over the Investment Property of the Commonwealth Bank of Australia Limited (CBA Mortgage).

[category (1); (5) at [59] above]

86. Dr de Berigny maintains that this is not a pleading of material fact but, rather, a subjective view. To the contrary, it is clear that this alleges material facts in a standard and unobjectionable way. The pleading at [2A(a)] is of a kind that appears in countless pleadings involving corporate entities in the Corporations List and elsewhere. The pleading at [2A(b)] is readily understandable. If the complaint is as to the use of the expression “Investment Property” then I make the same observation as that above.

Paragraph 4

4.   In about December 2018 the plaintiff and the first defendant parties commenced a relationship in Sydney whereby the plaintiff and the first defendant parties would on occasion visit the other’s place of residence in Sydney.

[category (1) at [59] above]

87. The complaint is that this is an allegation not of material facts but of subjective views. I accept that the reference to the commencement of a relationship may involve a subjective element, but it does not appear that Dr de Berigny had any difficulty in pleading to this in the initial version of the statement of claim and, indeed, Dr de Berigny herself maintains that the parties had a romantic relationship. If the complaint is as to the date of commencement of the relationship, then that is a factual dispute that can be ventilated at the trial. It seems clear what is here being asserted and what case Dr de Berigny has to answer. If there is any doubt as to what is meant by “commenced a relationship”, then a request can be made for particulars.

Paragraph 5

5.   In about February of 2019 the plaintiff and the first defendant parties travelled to Tasmania as the first defendant was investigating the possibility of investing in property in or around Hobart, Tasmania.

[category (1); (3); (7) at [59] above]

88. The complaint here is threefold: that the pleading involves subjective views not material facts; that it contains objectionable views rolled up; and that it includes expressions that are difficult to understand. As to the first, it is difficult to see what subjective view is here said to be pleaded. As to the second, again it is difficult to see what the complaint is. As to the third, I cannot see what is difficult to understand. I assume, from the tenor of the complaints in general, that the problem is the reference to the possibility of “investing” in property. The concept of investing in property is readily comprehensible in my opinion.

Paragraph 6

6.   During the visit to Tasmania it became apparent to the plaintiff that the properties that the first defendant could afford to purchase were not in what the plaintiff thought were good growth areas and were in areas which the plaintiff thought were unlikely to see much capital growth.

[category (1); (2) at [59] above]

89. The complaint here is twofold: that the pleading involves subjective views not material facts; and, that it contains uncommunicated views and state of mind allegations. As to both of these complaints, it is in terms a pleading as to Mr Colombini’s perception of matters. It is not objectionable because of this alone. Dr de Berigny appears to have been able to plead to an earlier version of this without difficulty.

Paragraph 7

7.   The plaintiff made some enquiries and determined that if the plaintiff and the first defendant parties pooled some funds the affordable properties would be of the kind of properties, and in areas, which the plaintiff thought would likely yield attractive income returns and experience capital growth.

[category (2) at [59] above]

90. The complaint here is that the pleading involves uncommunicated views and states of mind. I accept that the allegation is as to the conduct of, and views held by Mr Colombini. If the dispute is as to the lack of particularisation of the alleged enquiries, then those particulars can be sought. However, it is sufficiently clear what Mr Colombini is here asserting, namely that he considered that if he and Dr de Berigny pooled some funds they would together be able to afford to purchase the kind of properties, and in areas, which he thought would likely yield attractive income returns and experience capital growth. If those views or that state of mind were or was not communicated to Dr de Berigny, then it will be a simple matter to plead by way of a non-admission and put Mr Colombini to proof in respect of those allegations.

Paragraph 8

8.   The plaintiff and the first defendant parties discussed the potential to invest in a property together and over a number of conversations in the state of New South Wales agreed that they would purchase an investment property together in Tasmania for investment purposes and each would contribute half of the purchase price of the Investment Property and each would effectively hold a half interest in the Investment Property, albeit that the first defendant would hold the Investment Property in her sole name with her name being solely on the certificate of the title (altogether the Agreement).

Particulars

(a)   The Agreement was oral in conversations between the plaintiff and the first defendant between January and April 2019 but confirmed in part by correspondence from the first defendant to the plaintiff; and

(b)   The plaintiff relies upon paragraphs 19, 21, 24, 25, 26 and 38 to 42 of the plaintiff’s affidavit sworn 20 January 2021.

[category (1); (7) at [59] above]

91. The complaint here is that the pleading involves subjective views not material facts and that it includes expressions that are difficult to understand. I struggle to see how either complaint is sustainable.

Paragraph 9

9.   The plaintiff and the first defendant parties had travelled to Tasmania and had visited the Investment Property and resolved and agreed to purchase it and the plaintiff negotiated the contract with the real estate agent on about 3 March 2019 2020 as represented by Christine Huxtable, real estate agent. The decision was made by the plaintiff and the first defendant on that day to purchase the Investment Property and a document was produced by Christine Huxtable which was then signed by the first defendant.

Particulars

a)   Contract of Sale dated 3 March 2019 2020 and signed by the first defendant in the presence of real estate agent Christine Huxtable and the plaintiff; signed on page one under “name” as “Caitilin De Berigny and/or nominee”.

(b)   Conversation by the plaintiff and the first defendant with Christine Huxtable at the same time in which she said words to the effect: “why don’t you put ‘nominee’ on the name so that you can change the names later if you want to”.

(c)   For the travel the plaintiff spent about $3000 in respect of the travel arrangements includinge vehicle rentals. The plaintiff also spent about $4000 in relation to the rental car because of an accident that the first defendant had at the time of the travel and visitation of the Investment Property (as evidenced by an email dated 10 April 2019 from Insurance company representatives).

[category (1); (3); (6); (8) at [59] above]

92. Multiple complaints are made as to this paragraph: that the pleading involves subjective views not material facts; that it contains objectionable views rolled up; that it contains multiple meanings and is difficult to understand; and that it is too long and unintelligible.

93. In oral submissions, the complaint was that this paragraph was rolled up with material facts – by reference to the “Investment Property”, the allegation that it was resolved and agreed to purchase the Property, and that Mr Colombini negotiated the purchase. Dr de Berigny cavils with each of those allegations and complains as to the use of the defined term “Investment Property” in particular. However, the allegations contained in this paragraph are all allegations of material fact which will need to be determined at trial. Use of the defined term does not insinuate anything – the allegation that the Property was to be bought as an investment property was made earlier in the pleading. It is simply a defined term when used in this and other paragraphs of the pleading to mean the Sandy Bay Property. There is nothing objectionable or embarrassing in this. Nor does it seem to me that the pleading is too long or unintelligible, or has multiple meanings. If there is truly any doubt as to what is meant by “resolved and agreed” or “negotiated”, that can be explored through a request for particulars.

Paragraph 10

10.   There were various terms to the Agreement.

Particulars:

(a)The plaintiff and the first defendant Parties were to pay one-half each for the Investment Property;

(b)   The only name on the title would be that of the first defendant as the plaintiff did not wish for his name to be on the title to save his family any undue anxiety and to ensure that there was no disturbance in the life of his daughters and his former wife who reside in Queensland as the plaintiff was separated from his former wife but not yet divorced and the plaintiff had not informed them of his relationship with the first defendant;

(c)   In due course an agreement document would be drawn up to attempt to express the arrangement reached between the plaintiff and the first defendant parties as to the holding and management of the Investment Property-- to be sent to the plaintiff along with all the costs;

(d)   The Investment Property would be leased through ‘Airbnb’ for investment purposes and the first defendant would manage the process and the net rental income would be shared and the share of the plaintiff was to be transferred to the plaintiff from time to time;

(e)   Costs of the Investment Property were to include a number of furnishings in the Investment Property and payments made by the plaintiff were to cover various furnishings including works of art such that the Investment Property would be ready to be leased, licensed, used and rented out immediately and would be an attractive prospect for interested users, tenants and occupants through Airbnb lessees; the first defendant provided a list to the plaintiff in an email of 3 April 2019;

(f)   The first defendant was to instruct solicitors on behalf of the plaintiff and the first defendant parties and the plaintiff and the first defendant parties would negotiate with the real estate agent when required. The solicitors instructed were Abetz Curtis (as suggested by the real estate agent Christine Huxtable). The real estate agent was Fall & Associates;

(g)   Both the plaintiff and the first defendant received advice from Abetz Curtis or communicated with Abetz Curtis; and

(h)   Irrespective of where the relationship would evolve to, the plaintiff clarified the fact that the Investment Property was to be owned “50%-50%”, and this was accepted by the first defendant.

Particulars

(A)   The plaintiff repeats the particulars to paragraph 8 above.

[category (1); (8) at [59] above]

94. The complaint here made is that the pleading involves subjective views not material facts; and that it is too long and unintelligible. Strictly speaking, one is only obliged to plead to pleaded allegations not the particulars – and the bulk of this paragraph seems to be contained in particulars. However, the allegation itself is readily understandable – that there was an agreement reached which contained a number of terms as set out in the particulars. Furthermore, I cannot see any pleading of “subjective views”.

Paragraph 11

11.   An agreement document was then drafted and sent by the first defendant, to the plaintiff via email.

Particulars:

(a)   A document drafted by the first defendant, entitled “Ownership Details” and then emailed to the plaintiff on 25 March 2019, first clause of which says “[the Investment Property] is in Caitilin de Bérigny’s name. However, Alessandro Colombini, paid for and owns 50% of the Investment Property: Nicolas Drive, Sandy Bay.” (“Ownership Details” document).

(b)   The Ownership Details was not signed by the plaintiff as some of its parts were not in accordance with what was discussed and agreed, for example the parts purporting to create an interest post mortem akin to a will.

[category (2) above]

95. Complaint is made that this contains uncommunicated views and states of mind. The allegation is a simple one – an agreement was drafted and sent by way of email. There is no substance to Dr de Berigny’s complaint.

Paragraph 12

12   The Investment Property was purchased as planned and as per the Agreement at a purchase price of $1,280,000 (Purchase Price) with the final settlement amount including duty, adjustments and various costs coming to $1,356,617.54 (Settlement Amount).

Particulars

(a)   Various emails between the plaintiff and the first defendant parties during the relevant time, attaching various documents including the contract of sale of the Investment Property from the real estate agent dated 3 March 2019 (which was signed previously and which was again forwarded to the plaintiff by the first defendant on 4 March 2019), letters from the lawyers including the breakdown of costs, and communications in relation to the shares of the respective properties.

[category (2); (3) at [59] above]

96. Again, the complaint is that the pleading involves subjective views not material facts; and that it includes expressions of objectionable views that are rolled up as material facts. I struggle to see any subjective (or objectionable) view there alleged; noting again that Dr de Berigny is not required to plead to the particulars.

Paragraph 13

13   Pursuant to the Agreement the plaintiff made, or caused to be made on his behalf, deposit payments to the solicitors and to the real estate agent, equalling half of the purchase price of the Investment Property.

Particulars

(a)   Email from the first defendant confirming the bank account details of the real estate agent, email dated 4 March 2019 2020;

(b)   The amount of $130,000 caused to be transferred by the plaintiff on 7 March 2019 as deposit amount to the Real Estate account;

(c)   Email from the first defendant to Christine Huxtable dated 7 March 2019 confirming the deposit by the plaintiff, copying the plaintiff on the email; and

(d)   The amount of $560,000.00 on 26 March 2019 caused to be transferred by the plaintiff directly into an the Abetz Curtis bank account.

[category (3); (6) at [59] above]

97. The complaint as to this is of objectionable views rolled up as facts and as to multiplicity of meanings. Neither of those complaints has any substance.

Paragraph 13A

13A.   In about late March 2019 or early April 2019, the Commonwealth Bank of Australia Limited (CBA) loaned the first defendant a sum of about $567,000 to be used as part payment of the purchase price for the acquisition of the Investment Property (the CBA Loan) which was to be secured by the CBA Mortgage as a first ranking mortgage to be registered on the title of the Investment Property following settlement of the purchase of the Investment Property.

[category (5) at [59] above]

98. The complaint here is that the allegation is irrelevant and/or vague. It seems perfectly clear to me. The allegation is relevant, as I understand it, because it goes to the circumstances in which the Sandy Bay Property was acquired.

Paragraph 13B

13B.   In March and April 2019, the plaintiff was aware of the CBA Mortgage and the CBA Loan and agreed with the first defendant to her using them to pay for her beneficial half interest in the Investment Property but the plaintiff did not agree to the first defendant increasing the indebtedness secured against the Investment Property beyond $567,000.

[category (2) at [59] above]

99. Complaint is made that this involves uncommunicated views and states of mind. It certainly includes an allegation as to the awareness by Mr Colombini of certain matters but it goes beyond this to contain an allegation as to what was and was not agreed between the two parties in relation to the matters referred to therein. There is no substance to Dr de Berigny’s complaint as to this paragraph.

Paragraph 14

14   The settlement date fell on 2 April 2019 and shortly thereafter the Investment Property was leased, licensed, used or rented out by the first defendant via Airbnb.

Particulars

(a)   Conversations and emails to and from the first defendant at the relevant time in 2019 including those containing attachments from solicitors.

[category (5) at [59] above]

100. The complaint here is as to irrelevant or vague allegations. It is not irrelevant in light of the claims made by Mr Colombini in respect of income earned from the use of the premises. Nor is it vague. It is supported by particularisation as to the matters alleged.

14A.   In April 2019, the CBA registered the CBA Mortgage on the title of the Investment Property.

[category (5) at [59] above]

101. The complaint here is again as to irrelevant or vague allegations. It is not irrelevant in light of the claims made by Mr Colombini in relation to the Sandy Bay Property. Nor is it vague.

Paragraph 15

15   The relationship between the plaintiff and the first defendant ended in about September 2019. The plaintiff has tried to contact the first defendant on various occasions both personally and through his solicitors, but the first defendant refuseds to communicate and has avoided the plaintiff at every opportunity ever since.

[category (2) at [59] above]

102. The complaint here is that it involves uncommunicated views and states of mind. I accept that it pleads to Mr Colombini’s view as to the time the relationship ended. Dr de Berigny may have a different view but that does not make the pleading objectionable. Similarly, there might be complaint as to the lack of particularisation of the alleged attempts to contact Dr de Berigny but that could be dealt with by a request for particulars.

15A.   On 21 May 2020, the plaintiff lodged a caveat on the title of the Investment Property noting his entitlements to legal title to 50% of the Investment Property.

103. No complaint is made as to this paragraph of the proposed amended pleading but I have set it out for completeness.

15B.   Since around 19 June 2020, the second defendant has held an unregistered mortgage over the Investment Property as security for finance extended by the second defendant to the first defendant without the knowledge or consent of the plaintiff.

[category (3); (5) at [59] above]

104. The complaint here made is that this involves objectionable views rolled up as material facts and that it contains irrelevant or vague allegations. It is not clear what views are here said to be pleaded. Nor is it clear how this could be said to be irrelevant in light of the claims made by Mr Colombini in respect of an interest in the Sandy Bay Property.

15C.   On 19 June 2020, the second defendant lodged an unregistered discharge of mortgage on the title of the Investment Property seeking to discharge the CBA Mortgage.

[category (5) at [59] above]

105. The complaint here is as to irrelevant or vague allegations. It is not irrelevant in light of the claims made by Mr Colombini in respect of an interest in the Sandy Bay Property and the relief he claims.

15D.   On 13 August 2020, the second defendant lodged an unregistered caveat on the title of the Investment Property.

[category (5) at [59] above]

106. The complaint here is again as to irrelevant or vague allegations. It is not irrelevant in light of the claims made by Mr Colombini in respect of an interest in the Sandy Bay Property and the relief he claims.

15E.   On 2 October 2020, the plaintiff commenced the current proceedings against the defendant by filing his original statement of claim.

107. No complaint is made as to this paragraph of the proposed amended pleading. Again, it is set out here for completeness.

15F.   On 9 February 2021, the plaintiff lodged a further unregistered caveat on the title of the Investment Property noting his entitlements to beneficial interests in 50% of the Investment Property or an equitable charge or equitable lien.

108. No complaint is made as to this paragraph of the proposed amended pleading and again it is extracted here for completeness.

Express Trust

15G.   In the premises pleaded in paragraphs 1 to 15F above, the plaintiff claims that:

(a)   between January and April 2019 the plaintiff and the first defendant agreed to and created an express trust by which the first defendant agreed to hold 50% of the Investment Property on trust for the benefit of the plaintiff, as tenants in common, and either:

(i)   not subject to the mortgage of the second defendant over the Investment Property; or

(ii)   alternatively, is subject to the mortgage of the second defendant over the Investment Property but only up to such sum as the Court determines and thereafter not subject to the mortgage of the Second Defendant; or

(b)   alternatively, in light of the contributions made to the purchase price of the Investment Property by the plaintiff pleaded in paragraphs 1 to 15F above, the first defendant holds 50% of the Investment Property, or such other percentage as the Court determines, on express trust for the benefit of the plaintiff, as tenants in common, and either:

(i)   not subject to the mortgage of the second defendant over the Investment Property; or

(ii)   alternatively, is subject to the mortgage of the second defendant over the Investment Property but only up to such sum as the Court determines and thereafter not subject to the mortgage of the Second Defendant.

[category (4); (5); (8) at [59] above]

109. The complaint here is threefold: that the pleading has excessive alternatives and is confusing and intermixed; that it contains irrelevant or vague allegations; and that it is too long and unintelligible.

110. Paragraph 15G is under the heading “Express Trust”. In essence, the real complaint seemed to be that there were too many alternatives and that the pleading was too long and unintelligible. Complaint was also made that there was no agreement established (though, of course, that is an issue to be determined on the merits at the trial).

111. I do not consider that [15G] is an embarrassing pleading, albeit that it contains a number of alternatives. What is clear is that it is alleging that there is an express trust by which Dr de Berigny agreed to hold 50% of the Sandy Bay Property (defined as the “Investment Property”) on trust for the benefit of Mr Colombini. There are two alternative ways in which the express trust is said to have come into existence; and, on either of those two alternatives, there are two alternatives as to how the express trust was to be subject to the mortgage (whether the 50% interest said to be held on trust was to be subject to the mortgage at all or whether it was only to be subject to the mortgage for a particular amount). In oral submissions, Dr de Berigny appeared to understand that the pleaded allegation was to that effect but maintained her objection thereto (see T 23-24).

134. Noting that the subpoena to NAB has been answered (the documents produced being in Packet S10), Mr Colombini accepts that if leave is granted to file the amended statement of claim before allowing access to the NAB documents then there might arise a question whether the subpoena contravenes Practice Note SC Eq 11 (pursuant to which, in accordance with [4], discovery can only be obtained before the service of evidence in exceptional circumstances necessitating disclosure). However, it is noted in this regard that NAB has not objected to the subpoena and that the subpoena was issued and answered before any joinder of NAB. (Pausing here, I accept that the issue of the NAB subpoena did not contravene the Practice Note in the circumstances prevailing at the time and I consider that the just, quick and cheap resolution of the real issues in dispute means that there should be access to the documents so produced notwithstanding that the outcome of the Amendment Application is that NAB will now be joined as a party to the proceedings. That is because NAB is joined as its interests may be affected not because any direct cause of action is brought against it; and it seems unlikely that any evidence will need to be served by NAB once it is joined as a party.)

Subpoena dated 18 February 2021 to CBA (Packets S2 and S3)

137. Again, CBA has answered this subpoena without objection. The subpoena seeks: the bank statements, transfers and transactional documents related to the transfer of $560,000 (see Ex A at 164C, 164J); documents relating to the application for finance by Dr de Berigny to purchase the Sandy Bay Property; and account statements for Dr de Berigny’s CBA loan account that was secured against the Sandy Bay Property from its inception to date (see Ex A at 164J-4).

138. As to the bank statements, it is said that these are relevant to proving the transfer of funds to Abetz Curtis (given that Dr de Berigny disputes that transfer). As to the finance application, it is said that what representations were made by Dr de Berigny to CBA about the purchase of the Sandy Bay Property, the source of funds for purchase of the Sandy Bay Property, the income to be generated from the Property and Mr Colombini, are relevant to the issues in dispute in the proceedings or a chain of inquiry about them. As to the account statements, Mr Colombini is seeking to obtain evidence about the repayments Dr de Berigny made to that loan, including from any rent collected from use of the Sandy Bay Property.

Subpoena dated 18 February 2021 to Teacher’s Mutual Bank Ltd (TMB) (Packet S4)

139. TMB has answered the subpoena without objection. The TMB subpoena seeks documents relating to another application for finance by Dr de Berigny to purchase the Sandy Bay Property (Ex A at 164K). It is noted that this application for finance is referred to in an email dated 21 March 2019 from Dr de Berigny to Mr Colombini, twelve days before settlement of the sale, in which there is reference to TMB wanting a letter from Mr Colombini to the effect that he had gifted Dr de Berigny money for the purchase (see Ex A at 164G). Mr Colombini has deposed that he did not give such letter (see his affidavit sworn 3 March 2021 at [13]-[14]). It is submitted that what representations were made by Dr de Berigny to TMB about the purchase of the Sandy Bay Property, the source of funds for purchase of the Sandy Bay Property and Mr Colombini’s involvement with the purchase, are relevant to the issues in dispute in the proceedings.

140. The subpoena also seeks the same documents in respect of “Caitilin Quinn” and “Caitilin Quin”, in case the application was in either of those names, (as they are believed by Mr Colombini to be other names by which Dr de Berigny has been known).

Subpoena dated 18 February 2021 to Airbnb (Possibly Packet S5)

141. This is a subpoena to Airbnb, which Mr Colombini believes has already been answered (Packet S5), although the description for that packet in the online registry is that it is produced by “Kenneth Pang – LOD Legal” (see Ex A at 164L). Mr Colombini says that it is, therefore, unclear if objection to access has been taken by Airbnb. This subpoena seeks documents about the use made of the Sandy Bay Property and any income earned through Airbnb (matters relevant to the claim by Mr Colombini in respect of a share of that income).

Subpoena dated 18 February 2021 to F&A (Packet S1)

142. The F&A subpoena has been answered without objection (see Ex A at 164M). F&A acted as the real estate agent for the vendors in respect of the sale of the Sandy Bay Property in 2019. The subpoena seeks documents relating to the payment to F&A (and use thereof) of $130,000 by Mr Colombini (for, he says, the deposit to purchase the Sandy Bay Property) as well as communications about the purchase of properties by Mr Colombini and Dr de Berigny with F&A between December 2018 and mid-2019.

143. Mr Colombini notes that the pleadings and affidavits of both parties refer to conversations with Ms Huxtable, the lead real estate agent at F&A on the sale of the Sandy Bay Property. It is noted, that Mr Colombini deposes to having looked with Dr de Berigny for an investment property in Hobart starting from December 2018 until they settled on the Sandy Bay Property (see his affidavit sworn 20 January 2021 at [19]-[24]).

Subpoena dated 18 February 2021 to Roger Curtis and Abetz Curtis Lawyers (Packet S6)

144. The subpoena to Abetz Curtis (and to Mr Roger Curtis of that firm) seeks production of the conveyancing file for the purchase of the Sandy Bay Property (Ex A at 164N). Abetz Curtis produced documents in answer to the subpoena. On 11 March 2021, Dr de Berigny was given 7 days first access to the production. Dr de Berigny claims legal professional privilege over the whole of the production (T 35).

145. Mr Colombini says that the conveyancing file is relevant to the facts in dispute in the current proceeding as to the ownership of the Sandy Bay Property, the contributions to the purchase of the Sandy Bay Property and what use was made of the $560,000 that Mr Colombini transferred to Abetz Curtis in March 2019.

146. The subpoena also seeks files relating to draft wills of Dr de Berigny and Mr Colombini or agreements between them. Mr Colombini says that what instructions were given, and what documents were created regarding wills or agreements, is of relevance to a chain of inquiry about ownership of the Sandy Bay Property. It is noted that there is a draft agreement as to what was proposed to happen to the Sandy Bay Property on the death of Dr de Berigny or Mr Colombini (see Ex A at 164F).

147. Mr Colombini submits that any privileged documents should still be produced, but sealed, so that Mr Colombini has an opportunity later to challenge that privilege (such as under implied waiver of privilege) as the trial proceeds.

148. It is noted that any open communications between Abetz Curtis and the solicitor for the vendor, financiers or the Tasmanian Office of State Revenue relating to the conveyance, do not attract legal professional privilege. It is also said that it is likely that there will be documents which are created as part of the management of a legal practice and its compliance with ethical and legal requirements, which are not normally created for the dominant purpose of providing advice or conducting litigation. Therefore, it is said, that documents, such as memoranda of fees, tax invoices, bills of costs, retainer agreements, solicitors trust account ledger entries, solicitor’s bank account statements, solicitor’s office account ledgers, bank account transfer slips, receipts, remittance advices and costs agreements, do not normally attract legal professional privilege unless they record the substance of advice or instructions which are confidential (reference here being made to CBX2 Pty Ltd v National Australia Bank [2015] NSWSC 943 at [28]-[33] per Harrison AsJ and Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Ben’s of Australia) (1994) 126 ALR 58 at 68 per Tamberlin J).

149. Mr Colombini says that, to the extent that the subpoena to Abetz Curtis requires production of those kinds of managerial, banking and accounting documents, it follows that legal professional privilege does not apply. I agree.

Dr de Berigny’s submissions re subpoenas issued by Mr Colombini

150. Dr de Berigny identifies the central issue in the proceedings as being Mr Colombini’s rights to her residential home (the Sandy Bay Property) and says that the overriding issue in this regard is as to the formation of an agreement or trust (T 20). Dr de Berigny submits that this overriding issue is what must first be determined and that the documents sought under the respective subpoenas relating to the Sandy Bay Property lack particular relevance and have no bearing on that issue (T 31). It is submitted that the subpoenas amount to a “fishing expedition” in order to attempt to find evidence.

151. In particular, complaint is made as to the subpoena to Abetz Curtis. Dr de Berigny complains that the schedule to the subpoena is broad to the extent that it covers all of Dr de Berigny’s dealings with Abetz Curtis and that it lacks particularity relating to the overriding issue (i.e., the issue identified above as to Mr Colombini’s rights in relation to the Sandy Bay Property). It is said by Dr de Berigny that the subpoena fails to identify the specific information sought by Mr Colombini that is required to establish that this subpoena serves a legitimate forensic purpose that will materially assist his claim to the Property (Dr de Berigny’s affidavit affirmed 26 March 2021 at [7]-[8]; T 34-35).

152. As to the subpoenas to F&A, CBA, TMB, Airbnb and NAB, Dr de Berigny says that these all directly relate to the Sandy Bay Property, are “fishing expeditions” and have no legitimate forensic purpose relevant to the overriding issue (see Dr de Berigny’s affidavit affirmed 26 March 2021 at [6], [9]; T 31).

153. Dr de Berigny submits that access to all of these documents “circumvents legal procedural safeguards and legal safeguards provided by the Burden of Proof” and “contravenes any legal protection afforded to [her], being the owner and resident of the property, Privacy Act, [her] right to seek legal advice, preserve privilege information and freedom to exercise and administer use of [her] residential home, free from undue interference and abuse” (Dr de Berigny’s affidavit affirmed 26 March 2021 at [10]-[11]).

Plaintiff’s Subpoena Application

154. In turn, Mr Colombini’s motion filed on 18 March 2021 seeks to set aside subpoenas issued on 4 March 2021 by Dr de Berigny to CBA and ANZ. Mr Colombini submits that each of these subpoenas seeks documents not relevant to the proceedings, is an impermissible fishing expedition and has been issued for a collateral purpose to the litigation.

155. The schedule to the CBA subpoena seeks bank statements for the period from 1 January 2019 to 5 October 2019 for five bank accounts of Gava International (Aust) Pty Ltd, one bank account of Gava Singapore Pte Ltd and one bank account of DB Group. Mr Colombini is a shareholder and managing director of each company.

156. The schedule to the ANZ subpoena seeks bank statements from 1 January 2019 to 5 October 2019 for a joint account of Mr Colombini and his ex-wife (Linda Colombini) and for an account of DB Group.

157. Mr Colombini submits that, apart from the transactions by which Mr Colombini transferred $130,000 and $560,000 toward the purchase of the Sandy Bay Property on 7 and 26 March 2019, respectively, the rest of the information in the CBA and DB Group bank accounts for the period sought is irrelevant to an issue in dispute in the proceedings or a chain of inquiry in relation to an issue in dispute (and that the joint account of Mr Colombini and his ex-wife is entirely irrelevant for any period).

158. Mr Colombini submits that these subpoenas have been issued for a collateral purpose. Mr Colombini submits that Dr de Berigny’s actual motive in issuing the subpoenas to CBA and ANZ is to trawl for information to support her assertions of illegal activities or impropriety (which he says are unsubstantiated and which are denied). I note that Dr de Berigny’s allegations about “fraudulent and illegal” conduct “as defined by the ATO, Austrac and Proceeds of Crime Act 2002” can be seen, by way of example, in her affidavit affirmed 26 March 2021. Dr de Berigny says that the details of bank accounts held in both CBA and ANZ were evidence “freely tendered” by Mr Colombini in his affidavit evidence on 21 January 2021 (Dr de Berigny’s affidavit affirmed 26 March 2021 at [3]). (In fact, Mr Colombini’s affidavit has not been read but it has been tendered as to the fact that he deposed to the matters contained therein (Ex A).)

159. Dr de Berigny seeks documents from CBA and ANZ for the 2018-2019 financial year of the said bank accounts. Dr de Berigny says that these documents are material to her cross-claim in which she contends that there were “Unencumbered Gifts” (being moneys and gifts conveyed to her by Mr Colombini during the course of their relationship which she says was between October 2018 to 5 September 2019) (see Dr de Berigny’s cross-claim at [19]-[21]).

160. Dr de Berigny contends that Mr Colombini used different bank accounts including business accounts to spend for her benefit (citing, as an example, the alleged payment by Mr Colombini for a new air conditioner for her warehouse in Redfern using a Gava account – see particular (b) to [20] of the cross-claim). It is submitted that the documents reveal that there was a pattern of gift-giving using different accounts, and that this supports Dr de Berigny’s contention that, although the money of $130,000 given by Mr Colombini came through a business account, it does not follow that it was given for investment purposes; and that it was in fact given freely (see Dr de Berigny’s affidavit affirmed 26 March 2021 at [7]-[9]).

161. Thus, it is submitted that the subpoenas for these documents have a legitimate forensic purpose. Dr de Berigny says that these documents will materially assist her claim to establish the pattern of gift-giving using different business accounts, and that money contributed to the Sandy Bay Property was not given for investment purposes (see Dr de Berigny’s affidavit affirmed 26 March 2021 at [10]-[11]).

Determination as to respective subpoena applications

162. I have referred above to the test applicable on applications to set aside compulsory processes of the kinds here in issue.

163. Turning first to the subpoenas and the notice to produce the subject of the Defendant’s Subpoena Application, and leaving aside for the moment the subpoena to Abetz Curtis and Roger Curtis, I am satisfied that there is a legitimate forensic purpose for each of the subpoenas and the notice to produce issued by Mr Colombini. There is no doubt that what is in issue in the proceedings is the character of any payments made by Mr Colombini in relation to the Sandy Bay Property and the use made by Dr de Berigny of that property after its acquisition. The documents sought from CBA, NAB, F&A and Airbnb are clearly relevant to one or both of those issues and there is reason to believe that such documents exist (so as to mean that this cannot be said to be a mere fishing expedition).

164. As to the position in relation to the TMB subpoena, while it might be said that an application for finance that did not proceed is irrelevant to the question of the purpose for which finance was ultimately obtained, there is reason to believe that Dr de Berigny made representations to TMB in connection with an application for finance as to the source of funds for the purchase and I accept that such documents may throw light on the issues in the case. Therefore, I accept that there is a legitimate forensic purpose for this subpoena and that it is not a fishing expedition.

165. As to the Abetz Curtis subpoena, there seem to be three broad categories of documents sought, all limited to the 2019 year: (i) documents relating to the purchase or sale of the Sandy Bay Property (which are clearly relevant to or may possibly shed light on issues in dispute in the proceedings); (ii) documents relating to any Will for Dr de Berigny and Mr Colombini (the relevance of which is less clear but appears to relate to the draft agreement as to what was to happen to the Property in case of the death of either of the parties); (iii) documents relating to any agreements or contracts between the parties (which category is not in terms limited to the Sandy Bay Property but would include it and to that extent would clearly be relevant to the issues in the proceedings).

166. I am satisfied that there is a legitimate forensic purpose for the issue of this subpoena. I reject the suggestion that it is seeking the entirety of Dr de Berigny’s dealings with Abetz Curtis – as it is limited to the categories set out above. Furthermore, while I accept that any subpoena of this kind necessarily involves an intrusion into the privacy of the person in respect of whom documentation exists, that is not an answer to the fact that documents of the kind sought can clearly be seen to be sought for a legitimate forensic purpose having regard to the issues in the case.

167. Of concern, however, is that it is likely that at least some of the material sought will be the subject of legal professional privilege (which is a fundamental common law right – see GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266). It appears that Abetz Curtis regarded the client retainer as being with Dr de Berigny alone (not a joint retainer with Mr Colombini).

168. That said, it is also likely that not all of the documents the subject of this subpoena would attract legal professional privilege; and it is not apparent that Dr de Berigny has undertaken the exercise of separating out what is properly the subject of legal professional privilege and what is not (rather than simply assuming that all documents held by Abetz Curtis would be the subject of legal professional privilege).

169. In the circumstances, if Dr de Berigny wishes to maintain a claim of legal professional privilege she should prepare an affidavit listing the documents over which legal professional privilege is claimed and deposing to the basis for her claim that those documents are covered by legal professional privilege. Until that is done, access to the documents will not be granted to Mr Colombini but the subpoena will not be set aside.

170. As to the subpoenas issued by Dr de Berigny, there are two difficulties. First, they are very broad in scope (not being limited to the accounts from which the disputed payments towards the purchase of the Sandy Bay Property were made and not being limited to particular payments or withdrawals). Second, there is the earlier stated purpose of Dr de Berigny investigating whether Mr Colombini has engaged in illegal activities in relation to payments into or out of these accounts. Although Dr de Berigny accepted in the course of oral argument that she would be bound by the implied Harman undertaking in relation to the use that could be made of any documents obtained on subpoena in these proceedings (see Harman v Secretary of State for the Home Department [1983] 1 AC 280), it remains of no little concern to me that Dr de Berigny has in the past sought to justify these subpoenas by reference to the need for such investigations. The seeking of bank statements for an account in the name of Mr Colombini and his ex-wife illustrates the difficulty.

171. Insofar as Dr de Berigny now justifies the subpoenas she has caused to be issued on the basis that the bank statements sought are likely to throw light on what she contends is a pattern of gift-giving by Mr Colombini, and has particularised in her cross-claim a number of instances in which she contends such gifts were made, the subpoenas are not restricted to bank statements recording withdrawals in respect of any such instances. Further, although the subpoenas seek bank statements from multiple company accounts, there is only one reference in the cross-claim to a payment being made through a corporate entity, referred to as the plaintiff’s company “Gava”; otherwise the particulars refer only to payments by “the plaintiff”.

162. When seeking leave for the subpoenas to be issued, Dr de Berigny, in her application form, indicated that she sought leave to issue the subpoenas in order to establish that no such investment or financial contribution (as claimed by Mr Colombini) was made by Mr Colombini in the period between 1 January 2019 to 5 October 2019 (the latter being the date when it is said that their relationship ended). Evidence as to the payment of the sums of $130,000 and $560,000 has now been provided by Mr Colombini. If what Dr de Berigny is seeking is to establish that there was no other financial contribution to the Sandy Bay Property then it seems to me that such an exercise would appropriately be confined to a subpoena or notice to produce seeking statements recording the transfer of any moneys to Dr de Berigny or to relevant identified accounts (such as the account of the real estate agents) over a confined period; rather than a broad request for bank statements of a ten month period across a range of accounts (some of which may have nothing to do with any payments in respect of the Sandy Bay Property). This is not least because I remain troubled by the suggestion (drawn from Dr de Berigny’s own statements) that what Dr de Berigny is really seeking amounts to a purpose collateral to the proceedings.

163. For those reasons, I have concluded that the subpoenas issued by Dr de Berigny to CBA and NAB do not have a legitimate forensic purpose or at least are not so confined and that the appropriate order is to set aside those subpoenas (with liberty to Dr de Berigny to apply for leave to issue a more confined set of subpoenas should she maintain that there is a legitimate purpose for so doing). In that regard, I note that in Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303, at [25], Basten JA, with whom Emmett JA agreed, observed that it is not the function of the Court to redraft subpoenas (there setting aside the relevant subpoenas in full).

Conclusion

174. For the reasons set out above, I consider that the Summary Dismissal Application should be dismissed; that leave to amend the statement of claim and defence to cross-claim should be granted; that the Defendant’s Subpoena Application should be dismissed (but that access should not be granted at this stage to the documents produced by Abetz Curtis); and that the relief sought in the Plaintiff’s Subpoena Application as to the setting aside of the subpoenas to CBA and NAB should be granted.

Costs

175. As to the costs of the proposed amended pleading, Mr Colombini accepts that there should be an order that he pay Dr de Berigny’s costs thrown away by reason of amendment of his pleadings. However, Mr Colombini submits that Dr de Berigny has unreasonably opposed the amendments to the pleadings and says that this should sound in costs against her in respect of the hearing of motion. I agree.

176. As to the costs of the Summary Dismissal Application and the respective Subpoena Applications, those should follow the relevant events.

Orders

177. For the reasons set out above, I make the following orders:

1. Dismiss the first defendant’s notice of motion filed on 15 February 2021 (the Summary Dismissal Application) with costs.

2. Give leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) for the plaintiff to file the amended statement of claim and amended defence to cross-claim, the subject of the plaintiff’s notice of motion filed on 3 March 2021; and give leave pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff to join National Australia Bank Ltd as the second defendant to the proceedings.

3. With the consent of the plaintiff, order the plaintiff to pay the first defendant’s costs thrown away by reason of the amendment to the statement of claim; but otherwise order the first defendant to pay the plaintiff’s costs of the Amendment Application.

4. Direct the plaintiff/cross-defendant to file the amended statement of claim and amended defence to cross-claim by 20 April 2021.

5. Dismiss with costs the first defendant’s notice of motion filed on 19 February 2021 (the Defendant’s Subpoena Application).

6. Grant the plaintiff access to the documents produced on the subpoenas and notice to produce the subject of the Defendant’s Subpoena Application, save in respect of documents produced by Abetz Curtis over which legal professional privilege is claimed by the first defendant.

7. Direct that, if the first defendant seeks to maintain a claim for legal professional privilege over any documents produced on subpoena by Abetz Curtis, then the first defendant file and serve within 14 days of these orders an affidavit listing the documents over which privilege is claimed and the facts and circumstances by reference to which privilege is claimed, so that any dispute as to the claim of privilege can be determined.

8. Set aside the subpoenas filed by the first defendant on 4 March 2021 and addressed to Australia and New Zealand Banking Group Ltd and Commonwealth Bank of Australia, without prejudice to the first defendant’s ability to seek leave to issue more narrowly confined subpoenas addressed to the particular issues in dispute in the proceedings.

9. Order the first defendant to pay the plaintiff’s costs of the Plaintiff’s Subpoena Application.

10. List the matter for directions before me on 11 May 2021 at 8.30am.

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Decision last updated: 16 April 2021