Eggens v Balwang Investments Pty Ltd
[2004] VSC 388
•8 September 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1004 of 2004
| NAOMI EGGENS and | Plaintiff |
| BALWANG INVESTMENTS PTY LTD | First Defendant |
| and | |
| REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2004 | |
DATE OF JUDGMENT: | 8 September 2004 | |
CASE MAY BE CITED AS: | Eggens v Balwang Investments Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 388 | |
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Practice and procedure – joinder of party – Rule 9.06(b)(ii).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Carlile | Simon Parsons & Co |
| For the First Defendant | Mr M.J. Corrigan | Featherbys |
| For the Second Defendant | No appearance |
HIS HONOUR:
This is an appeal by the first defendant, Balwang Investments Pty Ltd, from an order of a Master made on 20 August 2004, whereby an application by the first defendant to add Roelof Eggens as a party to the proceeding was refused.
The matter proceeds under Rule 9.03(1), Rule 9.06(b)(i) and Rule 9.06(b)(ii). For reasons that I shall come to, I consider it essentially proceeds under Rule 9.06(b)(ii).
There is also a supplementary summons that, in the event that the first defendant fails in its appeal, the first defendant have leave to file a third party notice addressed to Roelof Eggens. He is the former husband of the plaintiff. For reasons again to which I shall come, it is not necessary to have recourse to the supplementary summons. The statement of claim alleges (paragraph 3) that the plaintiff was a registered joint proprietor of certain land (on the Mitta Mitta); that (paragraph 4) she signed a transfer of land transferring her interest to the first defendant; that (paragraph 10) her signature to the transfer was procured in circumstances that render it unconscionable for the first defendant to rely upon it, or alternatively (paragraph 11) that the first defendant holds the title in trust for the plaintiff. No mention of the identity of the other registered joint proprietor.
The matter came before the Master by summons filed 14 July 2004 which sought (1) that Roelof Eggens be added as a party to the proceeding; (2) the statement of claim be struck out pursuant to Rule 2.302 on the various grounds there set out; and other orders. The matter was adjourned from the return date of 28 July to 20 August when the Master determined the matter. For some reason which is not apparent to me, the primary relief sought on the summons before the Master, namely that "(1) Roelof Eggens be added as a party to this proceeding", is not referred to in the Order of Master. However, I am informed from the Bar table, and entirely accept, that the Master in fact dismissed that relief, that is to say, that Roelof Eggens be added as a party to the proceeding. The Master ordered that the plaintiff have leave to file and serve an amended statement of claim by 7 September 2004 and made consequential Orders as to the progress of the proceeding. However the Order of the Master of 20 August 2004 makes no reference to the matter before him and now before me of the joinder of Mr Roeleff Eggens as a party to the proceedings.
Before the Master on 20 August 2004 were affidavits of Mr G J Russo, solicitor for the appellant (being the first defendant) sworn 13 July 2004, in which in paragraph 5 is stated "the plaintiff is one of the two joint proprietors of the land" and in paragraph 6 "On 25 July 1994 the plaintiff and Roelof Eggens signed a transfer of all their estate and interest in the … land to the first defendant".
The matter before the Master appears to have gone off largely on the question of the amended statement of claim which is exhibited to an affidavit of Mr Simon Parsons, solicitor for the plaintiff, sworn 16 August 2004.
In the original statement of claim filed with the writ on 19 December 2003, in paragraph 3 appears the following, "On or about 19 May 1993 the plaintiff was a registered joint proprietor of land" (then with a description of the land set out). There is no reference in that paragraph to who was the other joint proprietor. Paragraph 4 states:
"On or about 25 July 1994 the plaintiff signed a transfer of land form transferring her interest in the land to the first defendant."
Paragraph 5 states:
"The transfer states the consideration to be 'the desire of the transferor to make a gift to the transferee.'"
Again, no reference to the other transferor.
In the defence of the first defendant to that original statement of claim, filed 12 March 2004 by paragraph 3 it is stated:
"It admits that on or about 19 May 1993 the plaintiff under her full name, Naomi Anne Eggens, and Roelof Eggens ("Roelof"), became registered as joint proprietors of the whole of the land."
Both Roelof and the plaintiff are referred to thereafter in the defence.
In the affidavit of Mr Simon Parsons, solicitor for the plaintiff, of 16 August 2004, and before the Master, an amended statement of claim was sought to be propounded and which, without opposition, was ultimately propounded. In it, in paragraph 3, the unnamed transferor and the unnamed joint proprietor is then named. Thus, in paragraph 3 of the amended statement of claim the words "with Roelof Eggens" ("Roelof") are sought to be added and "Roelof" is sought to be added thereafter in the statement of claim. In paragraph 7.5 of the amended statement of claim it is alleged that Roelof "waived and abandoned any right or entitlements that arose as a result of his signing of the transfer" and in paragraph 8.1 that "Roelof assigned any interest he may have had in land after the abandonment set out in paragraph 7.5".
Although strictly speaking it is not necessary, I granted leave for reference to be made to some subsequent affidavit material to the Order of the Master on 25 August 2004. I say strictly speaking not necessary because I am satisfied, for reasons that I will come to, that the relief sought under the appeal ought to be granted, that is to say, the ground (1) ought to be granted; but, in view of the circumstance of the late filing of the amended statement of claim before the Master namely on the day of the hearing, which gave the first defendant no opportunity to reply, I have noted the affidavit of the solicitor for the first defendant of 27 August 2004. It sets out what presumably would have been before the Master had there been time, namely in paragraph 8, "Mr Eggens has not executed any documents relevant to this matter prepared by our office"; and, again, a late affidavit of 6 September 2004 by the solicitor for the first defendant stating what I said at the outset, namely that the first paragraph of the relief sought before the Master was that Roelof Eggens be added as a party and that that relief was refused. In GRJ 2 to the affidavit of the solicitor for the first defendant of 13 July 2004, the transferors are referred to in the plural in the transfer of land.
That effectively sets forth the history of the matter sufficiently for the purposes of this Appeal.
I am satisfied that the appeal ought be granted and that Roelof Eggens ought to be added as a party to the proceeding. As I said at the outset, the fundamental rule, I think, which most closely and appropriately governs this matter is Rule 9.06(b)(ii). That provides that the Court may order the adding as a party
"a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding."
The first defendant also relies upon Rule 9.03(1). It seems to me that it is plain that, at least for the purposes of avoiding a multiplicity of proceedings and to ensure true finality in the matters raised in the present amended statement of claim and proceedings, it is proper and, indeed, necessary that Roelof Eggens be add as a party. Were he not, the matters which are half revealed in the amended statement of claim would remain potentially unresolved. For the purposes of the Court, difficulty would arise as to the finalization of the true issues between the joint transferors; and for the purposes of the first defendant, uncertainty would remain as to whether there was any other claim lurking from the non-party, Mr Roelof Eggens, in similar circumstances to those asserted by Mrs Eggens. The plaintiff and Mr Eggens were the joint proprietors to the land. A question arises as to whether, as asserted by Mrs Eggens, there was some similar flaw which could be relied upon by Mr Eggens. I entirely understand the virtue of the Court not ordinarily joining other parties who are not voluntarily parties to the proceedings. But, in my view, as is plain from the relevant authorities, in particular Boral Resources (Vic) Pty Ltd v Robak Engineering & Construction Pty Ltd & Anor[1], the true issues which are lurking in this matter ought to be flushed out and then dealt with finally in the one proceeding.
[1](1999) 2 VR 507 per Tadgell JA at [5].
For those reasons, I allow the appeal and I direct that Roelof Eggens be added as a party to the proceeding.
(Discussion ensued.)
First, I grant the appeal and I direct that Roelof Eggens be added as party to the proceeding.
Second, I give the plaintiff 14 days from today to file and serve an amended statement of claim.
Third, I think that probably still gives Mr Corrigan enough time to have a defence settled, filed and served and so I make no further consequential adjustment to the timetable hitherto laid down by the Master.
Next, I direct that the first defendant's costs of these proceedings be paid by the plaintiff.
And, finally, I grant a certificate to the plaintiff under s.4 Appeal Costs Act 1998 as to the costs thus ordered.
In relation to that last order, I do so because I consider that the difficulties and uncertainties arising out of this matter which were litigated before the Master were not of the plaintiff's doing. If this had been a question of the amended statement of claim as such, I would not have granted a certificate under s.4 but, as this essentially relates to the joinder of a party and there have been difficulties and uncertainties in relation to that, I consider it is appropriate to activate the power under s.4 Appeal Costs Act 1998 and I so order.
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