Daire v Haley - [2023] NSWSC 77

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Daire v Haley [2023] NSWSC 77
Hearing dates: 31 January 2023
Decision date: 31 January 2023
Jurisdiction: Equity
Before: Peden J
Decision:
1) Grants leave to Defendant to file the Notice of Motion in Court.
2) Grants leave to Defendant to file Amended Defence and Cross-Claim.
3) Reserves costs.
4) Adjourns the hearing part-heard.
5) Stands the matter over for Directions before the Real Property List Judge on 10 February 2023.

Catchwords:
CIVIL PROCEDURE — Leave to file amended defence and cross-claim — Where leave sought by defendant on day two of a hearing — Where amendment sought to clarify equitable interest claimed — Where plaintiffs resisted amendment on the basis that only constructive trust was pleaded —— Where plaintiffs’ success would deprive possible creditors of a bankrupt of real property — Where adjournment otherwise necessary for trustee in bankruptcy to be heard

Legislation Cited:
Bankruptcy Act 1966 (Cth)

Cases Cited:
Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Falloon v Madden [2012] NSWSC 652
Madden v Official Trustee in Bankruptcy (2014) 221 FCR 344

Category: Procedural rulings
Parties: Kimberley Jane Daire (First Plaintiff)
Nikki Ann Daire (Second Plaintiff)
Thomas Murray Haley (First Defendant)
Registrar-General of New South Wales (Second Defendant)
Representation:
Counsel:
B Goodyear (Plaintiffs)
T Crispin (First Defendant)
Solicitors:
Robinson Gill Lawyers (Plaintiffs)
Moama Law (First Defendant)
Submitting appearance (Second Defendant)

File Number(s): 2022/17459
Publication restriction: Nil

EX TEMPORE JUDGMENT

By Notice of Motion filed in Court the Defendant seeks leave to amend his defence and to file a cross-claim expressly seeking relief in the form of a declaration that the Defendant holds an equitable interest in a property at Moama, New South Wales (Property) equal to the whole of the value of the Property by reason of a resulting trust.
There is already a pleading that the Defendant holds an equitable interest because of a constructive trust.
The Plaintiffs are the registered proprietors of the Property but have brought proceedings seeking declarations, including that the Defendant has no interest in the Property and that his caveat ought to be removed, and that the Registrar General must amend the register to report the Plaintiffs’ changed names. The Plaintiffs appear to accept that they became the registered proprietors because in 2001 the Defendant purchased the Property in their names, signing the contract for sale and transfer form for them without their knowledge.
The Defendant completed the purchase on about 15 January 2002 by means of a loan he took out in the names of the Plaintiffs. This conduct by the Defendant was not with the consent or knowledge of the Plaintiffs. At the time the Defendant took these steps he was a bankrupt. He was discharged from bankruptcy on 17 February 2002. By 16 February 2007 he had paid off the loan. The Plaintiffs accept that they are volunteers and the Defendant paid the whole of the purchase price.
The Defendant denies the Plaintiffs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daire v Haley

Details

AGLC: Daire v Haley [2023] NSWSC 77
Case: [2023] NSWSC 77
Decision Date: 31 January 2023

CaseChat Overview and Summary

The case of Daire v Haley involved the plaintiffs, Daire, suing the defendants, Haley, over a dispute concerning an equitable interest in property. The matter was heard in the Federal Court of Australia. The defendants sought leave to amend their defence and cross-claim on the second day of a hearing. The proposed amendment aimed to clarify the equitable interest claimed by the defendants, which the plaintiffs opposed, arguing that only a constructive trust had been pleaded. The plaintiffs contended that if the amendment were allowed, it could deprive potential creditors of a bankrupt of real property. The defendants argued that without the amendment, an adjournment would be necessary to allow the trustee in bankruptcy to be heard.

The court had to determine whether the defendants should be granted leave to amend their defence and cross-claim, considering the potential consequences for the bankrupt's creditors. The court also considered the appropriateness of granting leave on the second day of a hearing and the necessity of an adjournment for the trustee in bankruptcy to be heard. The court's decision hinged on balancing the rights of the parties involved and the implications of the amendment for the equitable interest claimed.

The court held that the defendants were entitled to leave to amend their defence and cross-claim. The court found that the amendment sought was not an attempt to raise a new cause of action but to clarify the existing equitable interest claimed. The court also noted that the potential impact on the bankrupt's creditors was a matter to be considered in the broader context of the proceedings. The court determined that an adjournment was not necessary as the trustee in bankruptcy could still be heard on the amended pleadings. The court's decision was based on the principle that amendments should be allowed where they do not prejudice the opposing party and are in the interest of justice.

The final orders included granting the defendants leave to amend their defence and cross-claim, with the amendment to take effect as of the date of the original pleadings. The court also ordered that the trustee in bankruptcy be provided with a copy of the amended pleadings and be given an opportunity to be heard on the amended claims. The case proceeded with the amended pleadings, allowing the defendants to clarify their equitable interest in the property and ensuring that the trustee in bankruptcy was adequately informed and involved in the proceedings.

Orders