Gerovich v Gerovich - [2018] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GEROVICH -v- MAXWELL JOHN GEROVICH as executor of the estate of ANTHONY GEROVICH [2018] WASC 153
CORAM:   PRITCHARD J
HEARD:   28 JUNE 2017
DELIVERED          :   23 MAY 2018
FILE NO/S:   CIV 2342 of 2016
BETWEEN:   IVAN YAKOV GEROVICH
Plaintiff
AND
MAXWELL JOHN GEROVICH as executor of the estate of ANTHONY GEROVICH
First Defendant
RAYMOND GEROVICH
Second Defendant
ROSLYN EVE GEROVICH
Third Defendant
MILKA GEROVICH
Fourth Defendant
MAXWELL JOHN GEROVICH
Fifth Defendant
A GERO PTY LTD
Sixth Defendant
A GEROVICH & SONS PTY LTD
Seventh Defendant

Catchwords:

Practice and procedure - Summary judgment application - Rules of the Supreme Court 1971 (WA) - Whether the defendants have a good or complete defence - Whether the action is time-banned - Whether the action seeks orders from the Court as to which the Court has no jurisdiction

Legislation:

Rules of the Supreme Court 1971 (WA), O 16 r 7

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr T M Clavey
First Defendant	:	Mr A P Hershowitz
Second Defendant	:	Mr A P Hershowitz
Third Defendant	:	Mr A P Hershowitz
Fourth Defendant	:	Mr A P Hershowitz
Fifth Defendant	:	Mr A P Hershowitz
Sixth Defendant	:	Mr A P Hershowitz
Seventh Defendant	:	Mr A P Hershowitz

Solicitors:

Plaintiff	:	Eastwood Sweeney Law
First Defendant	:	Granich Partners
Second Defendant	:	Granich Partners
Third Defendant	:	Granich Partners
Fourth Defendant	:	Granich Partners
Fifth Defendant	:	Granich Partners
Sixth Defendant	:	Granich Partners
Seventh Defendant	:	Granich Partners

Case(s) referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Bankwest (a division of CBA) v Mann [2015] WASC 187
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bell v Cribb [2013] WASC 32
Bride v Australian Bank Ltd (Unreported, WASC, Library No 950632, 23 June 1995)
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Gel Custodians Pty Ltd v Dewar [2014] WASC 177
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hee v Nyoni [2014] WASC 44
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Lloyd v Tedesco [2001] WASC 99
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232
Radonich v Radonich [1999] WASC 165
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Wallingford v Mutual Society (1880) 5 App Cas 685
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Williams v Nicoski [2003] WASC 131

PRITCHARD J:

This is an application brought by the defendants for summary judgment (Application), pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). For the reasons which follow, the Application should be dismissed.
In these reasons for decision, I deal with the following matters:
1.Overview of the plaintiff's claim;
2.The Application;
3.The evidence relied upon, and objections to the evidence; and
4.Why the Application should be dismissed.

Overview of the plaintiff's claim

This litigation arises from a dispute involving members of the Gerovich family. For convenience and to avoid confusion, I will refer to all members of the family by their first names. No disrespect is intended.
The claims made by the plaintiff, Ivan (who is known as John), are based on either the existence of a family partnership, or on the existence of a joint endeavour by the members of the Gerovich family to acquire properties for investments.
John is the son of the late Anthony Gerovich, and Milka Gerovich (the fourth defendant). Anthony and Milka had three children: John, Maxwell (Max) and Raymond (Ray). Ray and Max are the second and fifth defendants respectively. Ray's wife Roslyn is the third defendant. Max is also named as the first defendant, in his capacity as the executor of his father's estate.
At the hearing of the Application, John's counsel indicated that John does not intend to pursue his claims as against Roslyn and the sixth defendant, and that he intends to further amend the Amended Statement of Claim (ASOC) to reflect that position.[1] (It may be that the sixth defendant will need to remain a defendant because the grant of the relief sought in respect of one of John's claims against the other defendants will bear upon the sixth defendant.) In any event, for present purposes, it is not necessary to consider further John's claims against those parties.
[1] ts 9 - 12.

The claims based on the existence of a partnership

In so far as John's causes of action proceed on the basis of the existence of a partnership, the claims he advances in the ASOC are, in summary, as follows:
•from about 1972, Anthony, John, Max and Ray (Gerovich family) were in a partnership called AW and M Gerovich and Sons (Partnership).[2]
[2] Amended Statement of Claim (ASOC) [10].
•the activities of the Partnership (Partnership Business) were a cattle farming enterprise on a group of properties known as 8 Mile Peg (Farm), a concrete and blue metal cartage business (concrete business), and property investments;[3]
[3] ASOC [10].
•all members of the Gerovich family worked in the Partnership Business and made non-financial contributions to the Partnership (by providing their labour), and also made financial contributions to the Partnership (by pooling income derived from the operation of the Partnership for the benefit of the Partnership).[4] Some of the money earned from the Partnership Business was put into a common bank account operated in the name of the Partnership (Partnership Funds), and some cash receipts from the Partnership Business were kept at the family home for use by members of the Gerovich family for personal expenditure;[5]
[4] ASOC [11].
[5] ASOC [11].
•all debts, expenses and liabilities associated with the acquisition and maintenance of the properties which were purchased by the Partnership were paid for out of the Partnership Funds;[6]
[6] ASOC [11].
•the seventh defendant, A Gerovich and Sons Pty Ltd (Company) was incorporated in September 1972. In 1974, the Company purchased the Farm from Anthony, and the Farm was then leased back to the Partnership.[7]
[7] ASOC [13].

John's allegations that the Partnership owns, or retains an equitable interest in, various properties

John claims that the Partnership purchased, and continues to retain an equitable interest in, various properties (Properties), namely 12 Seymour Street, Mira Mar (12 Seymour Street), 148 Middleton Road, Mira Mar (148 Middleton Road), 574 McDonald Avenue, Mount Barker (574 McDonald Avenue), 28 Kelly Street, Orana (28 Kelly Street), 30 Kelly Street, Orana (30 Kelly Street), 600 Meanwood Road, Bornholm (600 Meanwood Road), and 29 Blue Gum Road, Redmond West (Blue Gum Road). John's claims in relation to the Properties are summarised below.
•John claims that in October 1976, the members of the Gerovich family executed a transfer to purchase 12 Seymour Street as joint tenants. John claims that this was a purchase by the Partnership, and that all expenses connected with the property were paid for out of the Partnership Funds.[8] John says that in July 1979, the Partnership transferred its legal interest in 12 Seymour Street to Max.[9] John claims that all expenses connected with 12 Seymour Street after that time continued to be paid for from the Partnership Funds.[10] He claims that the Partnership therefore retained an equitable interest in 12 Seymour Street and remained the beneficial owner of that property;[11]
[8] ASOC [15] and [16].
[9] ASOC [18].
[10] ASOC [19].
[11] ASOC [20].
•John claims that in June 1979, the members of the Gerovich family executed a transfer to purchase 148 Middleton Road as tenants in common in equal shares, which John claims constituted a purchase of that property by the Partnership.[12] John claims that all expenses connected with 148 Middleton Road after 12 July 1979 were paid for from the Partnership Funds;[13]
[12] ASOC [17].
[13] ASOC [19].
•John claims that in 1980, the Partnership purchased 574 McDonald Avenue. John does not identify the registered proprietor of the property in his pleading, but it is apparent that he does not claim that the Partnership has the legal interest in 574 McDonald Avenue. Rather, he claims that all expenses connected with 574 McDonald Avenue were paid for from the Partnership Funds, and that for that reason the Partnership was the beneficial owner and retained an equitable interest in 574 McDonald Avenue;[14]
[14] ASOC [22] - [24].
•John claims that in August 1981, the members of the Gerovich family executed a transfer to purchase 30 Kelly Street as tenants in common in equal shares, which John claims constituted a purchase of that property by the Partnership. John claims that all expenses connected with 30 Kelly Street were paid for from the Partnership Funds;[15]
[15] ASOC [26].
•John claims that in February 1988, the Partnership purchased Blue Gum Road, although Ray was nominated as the registered proprietor. John claims that all expenses concerned with that property were paid for from the Partnership Funds;[16]
[16] ASOC [30] - [31].
•John claims that in January 1984, the Partnership purchased 600 Meanwood Road, but nominated the Company as the registered proprietor. John claims that all expenses associated with that property were paid for from Partnership Funds.[17] John also claims that in May 1988, 600 Meanwood Road was sold and the proceeds of that sale were applied to reduce the debt owed in connection with the purchase of Blue Gum Road.[18] John claims that this fact, together with the fact that the expenses associated with Blue Gum Road were paid for out of Partnership Funds, means that the Partnership was the beneficial owner of, and retained an equitable interest in, Blue Gum Road;[19]
[17] ASOC [28] - [29].
[18] ASOC [32].
[19] ASIC [33].
•John claims that in January 1989, the Partnership purchased 28 Kelly Street, but nominated Max as the registered proprietor. John claims that all expenses connected with that property were paid for from the Partnership Funds, with the result that the Partnership was the beneficial owner of, and retained an equitable interest in, 28 Kelly Street.[20]
[20] ASOC [34] - [35].
John also claims that in 1980, the Partnership purchased the concrete business, which was known as Mount Barker Concrete, and engaged in the business of manufacturing, laying and delivering concrete products.[21]
[21] ASOC [21].
John says that in January 1990, he stopped working in the Partnership. He claims that at that stage, the members of the Gerovich family had equal interests in the assets of the Partnership (Partnership property),[22] which he claims then comprised livestock, farming equipment, motor vehicles, concrete mixers, vehicle parts and spares, and legal or equitable interests in 12 Seymour Street, 148 Middleton Road, 574 McDonald Avenue, 30 Kelly Street, Blue Gum Road and 28 Kelly Street (alleged Partnership Properties).[23]
[22] ASOC [37] - [38].
[23] ASOC [38] - [39].
John claims that the Partnership continued in existence until 2013, that he remained a member of the Partnership until then, and that the Partnership only came to an end in about August 2013.[24] The bases on which John claims that the Partnership continued in existence until August 2013, and that he remained a partner until that point, are that:[25]
[24] ASOC [39] - [41].
[25] ASOC [41].
(i)in January and July 2010, John made financial contributions to the Partnership to assist the Partnership to pay rates and taxes for the alleged Partnership Properties;
(ii)on various occasions up until August 2013, Ray consulted John about matters relating to the Partnership, including the development of the alleged Partnership Properties, about further investments which the Partnership should make, about the pursuit of the farming business, and about the purchase of equipment for the benefit of the Partnership; and
(iii)in July 2013, Ray proposed to John that the Partnership pursue a residential unit development on 148 Middleton Road;
(iv)on 18 July 2013, Ray informed John that he was no longer included in the Partnership.[26]
[26] ASOC [42].
In the alternative to his claim that the Partnership continued until August 2013, John claims that the Partnership ended on an earlier date. He contends either that the Partnership ceased on Anthony's death in September 2010, or alternatively that it ended in or about July 1992, when the business name under which the Partnership had operated ‑ AW and M Gerovich and Sons ‑ was deregistered, or alternatively that the Partnership ended in about January 1990, when John ceased to actively work in the Partnership business.[27]
[27] ASOC [43].
John claims that since the dissolution of the Partnership (whenever that occurred) he has not been paid for his share of equity in the Partnership property, that he remains a registered proprietor of 148 Middleton Road and 30 Kelly Street, and that he has never been provided with a final statement of accounts as between him and the remaining members of the Partnership.[28]
[28] ASOC [44] - [45].
The relief John seeks in respect of this aspect of his action is a decree of the dissolution of the Partnership pursuant to s 46 of the Partnership Act 1895 (WA) (Act) on the grounds that it is just and equitable that the Partnership be declared to have been dissolved, and relief pursuant to s 55 of the Act, and 'alternatively a resulting trust, alternatively a constructive trust over all real and personal property acquired by the defendants utilising Partnership property and profits'.[29]
[29] ASOC [46].

John's claims based on the pursuit of a joint endeavour by the Gerovich family

In the alternative, John claims that the investments made by the Gerovich family in the Properties were made in the pursuit of a joint endeavour (Joint Endeavour). John claims that the Joint Endeavour was to make property investments for the purpose of providing financial security for each member of the Gerovich family by creating wealth, so as to allow the Gerovich family to acquire additional property by way of investment, and providing for their retirement by way of capital gain and profit from the sale of the Properties.[30]
[30] ASOC [47].
John claims that he made valuable financial contributions equal to his share of the pooled Partnership Funds which were applied to the purchase of, debt reduction for, and payment of liabilities and expenses connected with, the Properties.[31]
[31] ASOC [48].
John claims that as a consequence of the Joint Endeavour, the defendants have accrued wealth by reason of the capital gain in the value of the Properties over time.[32]
[32] ASOC [49].
John says he wants to have access to his share of the equity in the Properties in order to fund his retirement but that the defendants have refused his requests to sell the Properties.[33]
[33] ASOC [50].
John claims that the Joint Endeavour has failed because the Gerovich family members have fallen into dispute over their respective interests in the Properties, as a result of which the defendants have prevented John from realising his equity in 12 Seymour Street and 148 Middleton Road, and have denied that he has any equitable interest in the remainder of the Properties. John claims that it is unconscionable for the defendants to do so.[34]
[34] ASOC [51] - [52].
John seeks orders for the sale of the Properties, or for equitable compensation equal to the value of his legal or equitable interest in the Properties.[35] In the alternative, John seeks a declaration that he has an equitable interest, by way of a constructive trust, in 574 McDonald Avenue, Blue Gum Road and 28 Kelly Street, and otherwise over all the real and personal property, profits, stock and equipment, and the proceeds, of the Joint Endeavour.[36]
[35] ASOC [53].
[36] Prayer for Relief B.

John's claim for relief under the Property Law Act 1960 (WA) (PL Act)

John claims that the personal circumstances of the Gerovich family members are such that all of the defendants (other than Roslyn) would benefit from the sale of the Properties.[37]
[37] ASOC [54] - [58], [60].
In those circumstances, he seeks an order for the sale of the Properties under s 126(2) of the PL Act.[38]
[38] ASOC [61].

John's claim for relief in respect of the Company

Finally, in respect of the Company, John claims that he has always held one C class ordinary share in the Company, but that in about 1993 or 1994, his shareholding in the Company ceased to be recorded in the Company's records, and no explanation has been provided to him for that omission. He seeks a declaration that he is the beneficial owner of one ordinary C class share in the Company and rectification of the share register.[39]
[39] ASOC [76].
John also claims that the defendants are presently in dispute concerning their respective interests in Anthony's share in the Company, and are generally in dispute, and that the Company is being operated solely for the benefit of the defendants, to his exclusion. John seeks an order for the winding up of the Company pursuant to s 461(k) of the Corporations Act 2001 (Cth).[40]
[40] ASOC [80].
In summary, the relief John seeks in the action is:
(i)a decree as to the dissolution of the Partnership pursuant to s 46 of the Act on the grounds that it is just and equitable that the Partnership be declared to have been dissolved, and an order for an account of the partnership, and further relief pursuant to s 55 of the Act;
(ii)alternatively, a declaration that John has an equitable interest, by virtue of the existence of a constructive trust, in 574 McDonald Avenue, Blue Gum Road and 28 Kelly Street [and presumably, 12 Seymour Street], and otherwise over all the real and personal property, profits, stock and equipment, and the proceeds, of the Joint Endeavour;
(iii)orders for the sale of all of the Properties which John says were acquired by reason of the Joint Endeavour, and for the distribution of the net proceeds from the sale of those Properties, or alternatively an order that the defendants pay him equitable compensation equal to the value of his interests in the Properties (in conjunction with orders for John to transfer any legal interest he holds in the Properties to the defendants);
(iv)orders for the sale of the Properties and the distribution of the proceeds to John, Ray, Max and Milka in proportions equal to their respective interests in the Properties;
(v)a declaration that he is the beneficial owner of one C class ordinary share in the Company, orders for rectification of the register of members of the Company, and an order for the winding up of the Company pursuant to s 461(k) of the Corporations Act 2001 (Cth).

The Application

Principles concerning an application for summary judgment under O 16 r 1 RSC

Order 16 r 1 RSC requires the Court to be satisfied either that the action is frivolous or vexatious, or that the defendant has a good defence on the merits, or that the action should be disposed of summarily.
The principles in relation to the determination of applications for summary judgment are well established. A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial.[41] In other words, the question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail.[42]
[41] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ); Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J); Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602 ‑ 603 (Mason CJ, Deane & Dawson JJ).
[42] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602.

However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.[43]
[43] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 (Barwick CJ).
A defendant bringing a summary judgment application bears the legal onus of establishing that there is no serious question to be tried on any cause of action raised by the plaintiff.[44] Under O 16 r 1(2), the defendant is required to file an affidavit verifying the facts upon which the application is based.
[44] Anderson v Effexseven (1999) 10 ANZ Ins Cas 61-424, 74,757 (Parker J, Owen J agreeing).
The plaintiff is also entitled, under O 16 r 2, to file an affidavit to show cause against the application. If the plaintiff shows cause against the application for summary judgment by filing an affidavit in response, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. In other words, the plaintiff needs to show, on the evidence, that there exists a 'triable issue'.[45] In doing so, the affidavit must 'condescend upon particulars' ‑ that is, it must set out facts which establish that it is reasonable to permit the plaintiff to pursue the action.[46]
[45] See Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J) in relation to applications under O 14 r 1 RSC; see also Bankwest (a division of CBA) v Mann [2015] WASC 187 [46]; HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [26]; Gel Custodians Pty Ltd v Dewar [2014] WASC 177 [25]; Hee v Nyoni [2014] WASC 44 [25]; Wright v Wright [2002] WASC 30 [19].
[46] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J), citing Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
However while the plaintiff may assume an evidentiary onus, the defendant retains the legal onus of demonstrating that there is no real question to be tried.[47]
[47] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 24.
Actions should not be disposed of summarily when the facts are in dispute. Where there is a conflict on the affidavit evidence, the Court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting the application for summary judgment (in this case, John) will ultimately be accepted at trial.[48]
[48] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 [608].
The Court has power, whether under O 16 RSC or pursuant to its inherent power, to summarily dismiss a part of a claim.[49]

The bases for the summary judgment application

[49] Bride v Australian Bank Ltd (Unreported, WASC, Library No 950632, 23 June 1995).

It is not in dispute that some time from the 1970s onwards, the Gerovich family operated the Partnership.[50] There is a dispute as to whether the Partnership has come to an end, and if so, when that occurred.[51]
[50] ts 14.
[51] ts 14.
There is no dispute that if the Partnership came to an end (whenever that was), no account to the partners was undertaken, or at least not by the other partners to John in respect of his interest in the Partnership. In so far as John seeks relief in the form of a decree that the Partnership is dissolved, and an account of the Partnership, counsel for the defendants acknowledged that there could not be any complaint about his claim for that relief.[52] However, there is a dispute as to what assets constituted assets of the Partnership Business.
[52] ts 59 - 60.
The primary focus of the Application concerned John's claims that four of the Properties were Partnership Properties, or purchased in the pursuit of the alleged Joint Endeavour. Those properties are 12 Seymour Street, 574 McDonald Avenue, Blue Gum Road, and 28 Kelly Street (the disputed Properties). (The defendants do not dispute that, on the evidence, John has demonstrated at least an arguable case that the properties at 148 Middleton Road and 30 Kelly Street were bought by the Gerovich family and formed part of the Partnership property.[53])
[53] ts 14.
As the argument unfolded at the hearing, the defendants' case on the Application had four key planks:
(i)The defendants' primary argument[54] is that they have established that they have a good defence to John's claim that the disputed Properties were Partnership property, or that the disputed Properties were properties acquired on behalf of the Gerovich family as part of the Joint Endeavour. The defendants contend that on the evidence adduced on the Application, they have shown that they have a prima facie case that neither the Partnership nor the members of the Gerovich family (collectively) were, or are, the legal owners of the disputed Properties. The defendants' contention is that John has not identified, by any credible evidence, any basis for those of his causes of action which are premised on the contention that the disputed Properties are properties in which the Partnership has an interest, or in which John (and the other members of the Gerovich family) have an equitable interest, by virtue of the purchase of those Properties as part of the Joint Endeavour which John contends was pursued;[55]
(ii)The defendants say that John has not demonstrated that there exists a basis on which the Court could order a sale of any of the disputed Properties under s 126 of the PL Act, in that John does not have an interest amounting to a half share or more in any of the properties (for the purpose of s 126(1)), and he has not produced evidence that the sale of any of the disputed Properties would be for the benefit of the parties with an interest in them (for the purpose of s 126(2));
(iii)The defendants say that the Partnership came to an end, or that the Joint Endeavour failed, in 1993, which means that John's causes of action are time barred;
(iv)The defendants say they have a complete defence to John's claim for the winding up of the Company as they have offered to transfer one share in the Company to John.
[54] ts 18.
[55] ts 16.

The evidence relied upon, and objections to the evidence

Before turning to consider each of those grounds, it is appropriate to note the evidence on which the parties rely. Counsel for the defendants read the following affidavits:
(i)The affidavit of Ray Anthony Gerovich sworn 14 November 2016 (Ray's first affidavit);
(ii)The affidavit of Ray Anthony Gerovich sworn 3 March 2017 (Ray's second affidavit);
(iii)The affidavit of Maxwell John Gerovich sworn 30 November 2016 (Max's first affidavit);
(iv)The affidavit of Maxwell John Gerovich sworn 3 March 2017 (Max's second affidavit);
(v)The affidavit of Jacob Van Duyn sworn 7 December 2016 (Mr Van Duyn has been the accountant for A Gero Pty Ltd as trustee for the Gerovich Family Trust since January 2006);
(vi)The affidavit of Jacob Van Duyn sworn 2 March 2017.
Counsel for John read the following affidavits:
(i)The affidavit of Ivan Yakov Gerovich sworn 31 January 2017 (John's affidavit);
(ii)The affidavit of Milka Gerovich sworn 23 November 2015 in other proceedings in this Court, in CIV 2559 of 2014 (related proceedings).
Prior to the hearing, the parties made numerous objections to parts of the affidavits sworn by Ray, Max and John, on a variety of bases including that the affidavits contained hearsay, conclusions, opinion evidence, speculation, views on the ultimate issue, argumentative material, or constituted evidence in respect of which no proper factual basis was identified. John made 150 objections of this kind to the affidavits sworn by Ray and Max, and the defendants made 53 objections to John's affidavit. Counsel and solicitors should always carefully reflect on whether the time (and cost) of objections to affidavit evidence on interlocutory applications of this kind is warranted. Objections should not be taken to evidence which is unlikely to have significance in the resolution of the interlocutory application. If the objectionable nature of particular evidence is thought to be obvious, and if conferral cannot resolve the dispute over the admission of that evidence, then a more cost‑effective way of making an objection to it might be to simply make a global submission which invites the Court to pay no regard, or to give no weight, to such of the evidence as is clearly inadmissible, but without inviting the Court to make a ruling on each and every sentence, or part thereof, of the witness' affidavit or statement to which objection is made. (Of course, the problem will not arise in the first place if solicitors pay close attention to the preparation of witness statements or affidavits to ensure that they do not contain inadmissible material.)
In this case, as I discussed with counsel, I have dealt with the objections in a global fashion. In so far as objection is taken on the basis that the evidence given by a witness is hearsay, that objection is dismissed. The use of hearsay in affidavits relied on in summary judgment applications is clearly permitted by O 16 RSC.[56] In so far as an objection is taken on the basis that the evidence given by the witness is of the witness' information and belief, but does not identify the source of the witness' information and belief, I propose to treat the evidence as amounting to an indication of no more than what the witness believes to be the case, while recognising that that belief cannot itself constitute evidence of the fact the subject of the belief. In so far as it is said that the evidence given by a witness constitutes an expression of the witness' unqualified opinion, or constitutes a conclusion, or is speculation, or goes to the ultimate issue, I propose to treat the evidence as indicative of the witness' own view of the issue in question, and in the nature of a submission,[57] again recognising that that submission does not constitute evidence of a fact. Counsel did not object to the evidence being treated in this way.[58]
[56] Cf Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232 [41] (Newnes & Murphy JJA).
[57] Cf Bell v Cribb [2013] WASC 32 [11], [13].
[58] ts 3 ‑ 6.
In his affidavit, John deposed on numerous occasions to his belief that each of the disputed Properties was owned by the Partnership or acquired by the Gerovich family in the pursuit of the Joint Endeavour. By way of example, in relation to 28 Kelly Street, John deposed that 'I believe the mortgage payments … were paid from income received from [the concrete business] and the Farm as there was no other source of income because everyone was working for the Family Business'.[59] Counsel for the defendants submitted that John had not identified any evidence to support that belief, and that as such John's evidence of his beliefs was inadmissible. I do not accept that submission. John's statements as to his beliefs as to how the disputed Properties came to be purchased cannot be viewed in isolation from the balance of his affidavit, in which he set out direct evidence of the way that the members of the Gerovich family worked together and organised their finances. In that respect, his evidence included evidence:
[59] John's affidavit [242].
•that the members of the Gerovich family worked together in the Partnership Business;[60]
•that 'money that was made from our labour was pooled in a bank account and some cash was kept in a Family communal jar from which each member of my Family could take cash for their individual spending needs';[61]
•that he 'never received payment for my work and … didn't expect any',[62] and that he believed that no other member of his family received a wage from the family business;[63]
•that while completing an apprenticeship he 'had continued to work on the Farm on weekends and in my spare time, for no direct payment';[64]
•that during the late 1970s and early 1980s:
Max, Dad and I were each working at least 40 hours a week during this time. I was living at the Farm and did not receive a payment in the form of a wage from the Family Business. The Family operated on the basis that some cash money made from the sale of pre-cast concrete product was put in a communal money jar in the Farm house and that was the spending money for us all. Other than this, all the money from my Family, including me working the farming, cartage and concreting business went into the one account in the name of the [Company] and that paid for everything;[65]
•that 'I did not have access to the [Partnership] Bank Account until I received a cheque book in September 1981 and did not need to have access to the [Partnership] Bank Account as I took cash from the communal jar';[66] and
•that at various times 'no one in my Family had an independent source of income'.[67]
[60] John's affidavit [13].
[61] John's affidavit [15].
[62] John's affidavit [66].
[63] John's affidavit [68].
[64] John's affidavit [82].
[65] John's affidavit [85] - [93].
[66] John's affidavit [94].
[67] John's affidavit [110].
John's evidence as to the way the Gerovich family organised and pooled their finances is clearly the source of, and foundation for, his evidence of his belief that the disputed Properties are Partnership property, or were purchased as part of the Joint Endeavour. John's evidence of those beliefs must therefore be understood as relying on his knowledge of the Gerovich family's approach to organising their finances, and pooling the income earned from their labour for their family's business endeavours.
Counsel for John submitted that statements by John as to his beliefs were directly admissible as non-expert opinion evidence. He relied on the following principle set out by the learned author of Cross on Evidence:
When 'the facts from which a witness received an impression are too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated', a witness may state an opinion or impression.[68]
[68] J D Heydon, Cross on Evidence (10th ed, 2015, LexisNexis) [29085].
I am not persuaded that it is appropriate to treat John's evidence as non‑expert opinion evidence. That is not an appropriate characterisation of the nature of John's evidence.
For present purposes, I propose to treat John's evidence as to his beliefs as amounting to a submission ‑ namely that it is open to the Court to draw inferences concerning the acquisition by the Partnership, or by the Gerovich family in the pursuit of the Joint Endeavour, of interests in the disputed Properties, and that those inferences can be drawn from John's other evidence as to the way in which the Gerovich family organised their finances and pooled the income earned from their labour for their family's business endeavours.

Why the Application should be dismissed

(a) John's claim that the disputed Properties are Partnership Properties, or properties acquired as part of the Joint Endeavour pursued by the Gerovich family members

The defendants' contention that they have a good defence on the merits to John's claims in respect of the disputed Properties rests on the contention that John has no credible evidence capable of supporting his claims that the disputed Properties are Partnership Properties, or properties acquired in the pursuit of the Joint Endeavour. Counsel for the defendants submitted that John had not identified any credible evidence capable of establishing that the Partnership or Joint Endeavour existed after 1992 or 1993, and that that was significant for the purposes of assessing whether John had credible evidence that the disputed Properties were acquired by the Partnership or by the Gerovich family in the pursuit of the Joint Endeavour, and whether contributions made to the purchase price for the disputed Properties could be ascribed to the Partnership or the Joint Endeavour.[69]
[69] ts 27.
The question of what property constitutes partnership property falls for determination either by reference to an express agreement or may be implied by reference to the conduct of the parties.[70] I accept the submission of John's counsel[71] that in determining whether that inference may be drawn, all of the circumstances surrounding the purchase of the disputed Properties must be taken into account. As for the question of when the Partnership came to an end, while a partnership will come to an end on the death of one of the partners (in this case, Anthony), that outcome is subject to any agreement between the partners to continue in partnership.[72] Any such agreement may be express, or may be implied from the conduct of the partners.[73]
[70] Williams v Nicoski [2003] WASC 131 [249].
[71] Plaintiff's submissions [14].
[72] Partnership Act 1895 (WA) s 44(1).
[73] Williams v Nicoski [2003] WASC 131 [285], [293].
In so far as John's alternative contention ‑ of a Joint Endeavour ‑ is concerned, to succeed in that contention, John will ultimately need to prove that there was a Joint Endeavour between him and the other members of the Gerovich family for the purpose of providing permanent financial security and benefits to them, that he made valuable contributions to that joint endeavour, that as a result of the Joint Endeavour, the defendants' wealth increased, and that it would be unconscionable for the defendants to retain that wealth, to the exclusion of John.[74] In order to prove a joint endeavour exists, it will be necessary for John to establish an actual intention on the part of the members of the Gerovich family to pool their resources for that purpose. That intention can be proved by an express statement, or may be inferred from all of the facts and circumstances of the case.[75]
[74] Lloyd v Tedesco [2001] WASC 99 [10] (Miller J).
[75] Lloyd v Tedesco [2001] WASC 99 [10] (Miller J).
For present purposes, it suffices to say that on the evidence adduced in support of the Application, there is no doubt that there exists a dispute as to whether the Partnership was still in existence when some of the disputed Properties were acquired. There is also a dispute on the evidence as to whether express statements were made by members of the Gerovich family about purchasing the disputed Properties in the pursuit of the Joint Endeavour, and as to whether there is evidence from which the pursuit of that Joint Endeavour may be inferred.[76] Those disputes must be resolved at trial.
[76] John's affidavit [171], [173]; Ray's second affidavit [30] - [31], [51].
Counsel for the defendants accepted that the question at the heart of the Application was whether, on the evidence identified by John, it was open to draw an inference that gave rise to a triable issue that Partnership Funds, or funds derived from the pursuit of the Joint Endeavour, were used to purchase the disputed Properties.[77] Counsel for the defendants submitted that in making that assessment, the Court should take into account the fact that John had not adduced any evidence of other critical issues, for example, that John had not advanced any evidence to explain why the disputed Properties were purchased in the name of other parties, and why the Partnership accounts did not identify the disputed Properties as assets of the Partnership.[78] I have borne those matters in mind in assessing John's evidence.
[77] ts 21 – 22, 53.
[78] ts 53.
Counsel for the defendants submitted that in summary judgment applications, 'the Court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent'.[79] While that may be so, it cannot be ignored that in family and partnership disputes of this kind, and in the early stages of such litigation, there may be a number of reasons why a party does not have available to him or her all of the documentary evidence which may support their case. A more accurate documentary picture may emerge for all of the parties in the course of discovery.
[79] Defendants' submissions [38], citing Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28]; Eng Mee Yong v Letchumanan [1980] AC 331, 341.

However, in assessing the evidence adduced for the purposes of the Application, I also bear in mind that in family disputes such as this, which often span many years, and events long past, the contemporaneous documentary evidence may be limited. That appears likely to be the case here. Ray deposed that the only documents he had located in relation to the Partnership were its financial reports for the year ended 30 June 1993.[80] Not infrequently in such cases, the factual findings at trial will depend upon the evidence of the individuals concerned, which may in turn depend on the credibility of that evidence.[81] Furthermore, given that John claims that he has been shut out of the alleged Partnership Business for many years, it is perhaps not surprising that he does not have documentary evidence in relation to the purchase of the disputed Properties, or in relation to their use since then. In such circumstances, the Court should be very circumspect about forming adverse views about the adequacy of the evidence advanced for the purposes of a summary judgment application.
[80] Ray's first affidavit [31].
[81] Cf Radonich v Radonich [1999] WASC 165 [96] (Parker J).
This is an appropriate point to observe that the evidence adduced on the Application demonstrated that there is a dispute (the extent of which is not entirely clear) about the Gerovich family's arrangements concerning the pooling of their income. Ray acknowledged that some pooling of the family's income from the Partnership had occurred. He deposed that 'no income was pooled except to the extent that we were running the Partnership'[82] (emphasis added). He also deposed that some joint funds were 'put into an old beer mug on top of the kitchenette in the Family home on the Farm and was used by John, Max and I for social activities'.[83] However, in so far as John's evidence was that he worked on the Farm for long hours and without payment, Ray's evidence was that John did only a small amount of work, and that that was 'more than paid for by free board and lodging, meals and vehicle running expenses that he received from the Family business',[84] that his house was financed by the Gerovich family and that he received drawings from the Partnership.[85] The dispute as to the extent to which the Gerovich family pooled their income, applied that pooled income to the purchase of property (and to what properties) and took drawings from the Partnership must be resolved at trial. For present purposes, it suffices to say that John's claims that there was some pooling of financial contributions cannot be dismissed as without any credible evidentiary foundation.
[82] Ray's first affidavit [18].
[83] Ray's first affidavit [20].
[84] Ray's second affidavit [5], see also at [38], [41].
[85] Ray's second affidavit [36], [42].
For the reasons set out below, the defendants have not established that John has no credible evidence to support his claims that each of the disputed Properties was Partnership property, or alternatively that it was property which was acquired as part of a Joint Endeavour pursued by the Gerovich family members. Consequently, I am not persuaded that it is open to the Court to conclude that the defendants have a good defence to John's claims which would warrant striking out those claims to an interest in the disputed Properties. I explain that conclusion, in relation to each of the disputed Properties, below.

12 Seymour Street

Counsel for the defendants submitted that the evidence established that the defendants had a good defence to John's claim that 12 Seymour Street was either property which was Partnership property, or that the property was purchased in the pursuit of the Joint Endeavour.
Ray's evidence was that 12 Seymour Street was initially purchased 'in the name of' Anthony, Milka, Max, John and himself in 1976, but he deposed that they transferred the property to Max in 1979. That transfer was signed by all of the members of the Gerovich family, including John. It indicates that 12 Seymour Street was transferred to Max for consideration of $20,000.[86]
[86] Ray's first affidavit [89], and Annexure RAG32 to Ray's first affidavit.
Max's evidence was that when the other members of his family transferred 12 Seymour Street to him the consideration he paid was $20,000, which he obtained through a loan from a bank.[87] Max deposed that he had since paid out the loan in respect of 12 Seymour Street.[88]
[87] Max's first affidavit [12].
[88] Max's first affidavit [12].
As I understand John's case in relation to 12 Seymour Street, it is that the property was initially purchased as a Partnership property, and notwithstanding its subsequent transfer to Max, it was intended by the members of the Gerovich family that they would continue to have an interest in the property. John's case is that any payments in respect of 12 Seymour Street came from Partnership Funds because none of the partners took individual drawings from the Partnership, but rather used Partnership monies to pay for any personal expenses.
John's evidence was that he recalled that Max had asked Anthony, Milka, Ray and John to inspect 12 Seymour Street as he wanted the Gerovich family to buy the property and put units on it. John says that there was a family discussion about doing so, and that 'each of us was willing to buy the property together'.[89] John says they purchased 12 Seymour Street in October 1976, and that funds came from the family's pooled funds and from some money that Milka had inherited.[90] John says that the rest of the purchase price was borrowed.[91]
[89] John's affidavit [96] - [99].
[90] John's affidavit [102] - [103].
[91] John's affidavit [106].
John says that in July 1979, the family members signed a transfer to transfer 12 Seymour Street to Max. John's evidence is that he believes that Max did not pay consideration for that transfer because he (John) did not receive any payment for his interest in 12 Seymour Street.[92]
[92] John's affidavit [140] - [141].
In addition, John deposed that 12 Seymour Street backs onto 148 Middleton Road, and that Max subsequently suggested that they buy 148 Middleton Road, join it to 12 Seymour Street, and build units on the land. John deposed that all members of the family agreed that 148 Middleton Road would be a good purchase.[93] The intended implication of this evidence appears to be that the Gerovich family intended to retain 12 Seymour Street as a family investment, notwithstanding its subsequent transfer to Max.
[93] John's affidavit [138].
Counsel for the defendants submitted that John had not explained why he agreed to transfer 12 Seymour Street to Max if John still held some interest in that property.[94] However, there was some evidence in relation to the circumstances in which the property was transferred to Max. Counsel for John pointed to Max's evidence that 12 Seymour Street was transferred to him by the Gerovich family members in 1979
on the advice given to the family by our then bank manager, Noel Tunstle. Mr Tunstle advised that I should purchase the Seymour Street Property with a lower interest housing loan and the proceeds of the purchase could be used to pay out the debt on the property at 148 Middleton Road … . This suggestion was implemented by us.[95]
[94] Defendants' submissions [37].
[95] Max's second affidavit [7].
Ray's evidence was to similar effect.[96]
[96] Ray's second affidavit [17] - [18].
I gather that John's case is that that evidence suggests that 12 Seymour Street was transferred into Max's name in order to secure a lower interest rate on the loan used to fund the purchase of the property. Evidence of that kind would be capable of lending some support to John's claim that the intention of the partners was to transfer the legal interest in 12 Seymour Street to Max, while the partners (or participants in the Joint Endeavour) retained a beneficial interest in it.
In support of his claim that 12 Seymour Street was intended to remain an asset of the Partnership, notwithstanding its transfer to Max, John also relied on a profit and loss statement for the Partnership for the 1993 financial year.[97] It lists a house, with a value of $16,538, as a 'non-current asset' of the Partnership. It was not in dispute that that was a reference to 12 Seymour Street.[98]
[97] Affidavit of Jacob Van Duyn sworn 2 March 2017, Annexure JVD2.
[98] Ray's first affidavit [35].
Ray's evidence was that he believed that 12 Seymour Street had been erroneously included in the Partnership accounts after it was transferred by the partners to Max in 1979.[99] The defendants also relied on the evidence of Mr Van Duyn, who is an accountant, to the effect that the inclusion of 12 Seymour Street in the Partnership accounts for 1993 was erroneous.[100]
[99] Ray's first affidavit [35].
[100] Affidavit of Jacob Van Duyn sworn 2 March 2017 [10].
Whether 12 Seymour Street was rightly or wrongly included in the Partnership accounts after Max became the registered proprietor will require further explanation at trial. It suffices to say that the fact that 12 Seymour Street continued to be listed as a Partnership asset several years after it was transferred into Max's name is inconsistent with the conclusion that Max was the legal and beneficial owner of that property after it was transferred to him in 1979.
Finally, there was evidence as to the source of the funds used by Max to pay the mortgage on 12 Seymour Street. Max's evidence was that he paid the mortgage from his drawings from the Partnership.[101] He deposed that
regardless of which entity was operating the family's [concrete business], all family members took drawings from the entity for their own personal purposes. I took drawings and from these drawings I paid the housing loan payments for the Seymour Street Property. The interest rate was relatively low and the term was about 20 years so the payments were not difficult to make … These payments were not made by the family business, but from my drawings.[102]
[101] Max's second affidavit [10].
[102] Max's second affidavit [10].
In contrast, John's evidence was to the effect that the individual partners did not take any partnership drawings, but rather that the only source of income for each member of his family at the time (that is, after 12 Seymour Street was transferred into Max's name) was:
our pooled funds in our business Bank Account. No one was receiving any independent income at this time and accordingly, I believe that all debts, liabilities and expenses paid for 12 Seymour Street were paid for by money generated from the Farm or subcontracting to [the concrete business], as this was the income my family had at the time.[103]
[103] John's affidavit [145].
Assuming for the purposes of this Application that John's evidence will be accepted at trial, I am not persuaded that John's evidence would be incapable of supporting that conclusion that the funds used by Max to repay the loan for 12 Seymour Street, and which he regarded as his personal drawings from the Partnership Funds, instead constituted the use of the Partnership Funds to pay for the loan and the expenses connected with 12 Seymour Street.
One final aspect of the evidence adduced on the Application should also be noted. Ray deposed that he had arranged for electrical works to be undertaken at 12 Seymour Street, and that the works would be paid for by RA and RE Gerovich (which is the business name under which Ray and Roslyn operate in partnership).[104] Ray also deposed that since 1997, RA and RE Gerovich paid rates and taxes in respect of the disputed Properties, including 12 Seymour Street, and that that occurred over a number of years, including as recently as 2016.[105]
[104] Ray's first affidavit [87].
[105] Ray's first affidavit [50] - [52].
Ray did not offer any explanation for why he and Roslyn paid for expenses associated with the disputed Properties, including those ‑ such as 12 Seymour Street ‑ which he says were owned by Max. One possible explanation might be that he, or he and Roslyn, did so to assist Max, to whom Ray and Roslyn have provided support, at least in recent years. Another might be that Ray paid those expenses because the disputed Properties were considered to be properties in which the members of the Gerovich family have an equitable interest. The point for present purposes is that, notwithstanding that Max is the registered proprietor of 12 Seymour Street, it cannot be said that there is no evidence which supports, or is consistent with, John's claim that 12 Seymour Street is Partnership property, or was purchased as part of a Joint Endeavour.
Having regard to all of the evidence, I am not persuaded that the defendants have met the onus that is on them, namely to establish that there is no real question to be tried as to whether John has, or had, an equitable interest in 12 Seymour Street, notwithstanding that the legal interest in that property was transferred to Max.

574 McDonald Avenue

The defendants' case is that 574 McDonald Avenue was purchased by the sixth defendant as trustee for the Gerovich Family Trust in 1984, and that the Partnership did not purchase, nor did it ever have any interest in, this property.[106] The defendants pointed to the balance sheet for the Gerovich Family Trust for the year ending 30 June 1993, which refers to 574 McDonald Street as an asset of the Trust.[107]
[106] Ray's first affidavit [61].
[107] Ray's second affidavit [125]; Ray's first affidavit, Annexure RAG19.
However, the sixth defendant is not the registered proprietor on the title for 574 McDonald Avenue. The evidence was that a transfer of the title to the property has never been lodged. Ray deposed that the property has been in his possession since 1997,[108] and that he exercises authority in relation to the property.[109]
[108] Ray's first affidavit [64]; Defendants' submissions [41].
[109] Ray's first affidavit [65].
John's case is that although the vendor remains on the title to 574 McDonald Avenue, 'it is really owned by my Family'.[110] In support of his claim, John points to evidence given by Ray and Max in the related proceedings. In the related proceedings, Ray deposed that the purchase price for 574 McDonald Avenue was paid for out of the Partnership's bank account.[111] That is the basis for John's belief that 574 McDonald Avenue was paid for out of the family's pooled funds.[112]
[110] John's affidavit [162].
[111] John's affidavit [160].
[112] John's affidavit [161].
In the related proceedings, Max's evidence was to the effect that Ray arranged payment for the purchase of this property,[113] and that Max had 'never got around to organising the transfer' of 574 McDonald Avenue from the vendor because he was too busy to do so.[114]
[113] John's affidavit [159].
[114] John's affidavit [159].
In his affidavit filed in support of the Application, Ray deposed that in drafting the affidavit he filed in the related proceeding, he was relying on his memory, and that since then he has not found any evidence to support what he there said. He now says that he 'can only say that I am unsure how that purchase was funded and from where', although he also deposed that he recalled that 'a large part of the money was earned by me working as a boiler maker / welder … in Albany in about 1983/1984'.[115]
[115] Ray's second affidavit [24].
Having regard to this evidence in relation to the acquisition of 574 McDonald Avenue, it cannot be said that John has no credible evidence to support his claim that 574 McDonald Avenue was acquired by the Partnership (or in the pursuit of a Joint Endeavour by the Gerovich family).
Furthermore, John deposed that since 1980, the Gerovich family had behaved as if 574 McDonald Avenue was owned by them, and had paid the rates and taxes on the property.[116] There is some evidence which supports that claim. As was the case in relation to 12 Seymour Street, Ray gave evidence that since 1997, he and Roslyn (through their partnership RA and RE Gerovich) have paid for a number of expenses in respect of the disputed Properties, including 574 McDonald Avenue, and that those payments were made over a number of years, including as recently as 2016.[117] However, Ray did not offer any explanation for why he and Roslyn paid for those expenses. As I have already observed, there may be a number of explanations. One may be that the members of the Gerovich family regard themselves as having an equitable interest in 574 McDonald Avenue. For present purposes, it suffices to say that it is arguable that this conduct is consistent with John's claim that 574 McDonald Avenue is an asset in which the members of the Gerovich family have an equitable interest.
[116] John's affidavit [163].
[117] Ray's first affidavit [50] - [52].
Having regard to all of the evidence, I am not persuaded that the defendants have met the onus that is on them, namely to establish that there is no real question to be tried as to whether John has, or had, an equitable interest in 574 McDonald Avenue, so that it may be concluded that they have a good defence to John's claim with respect to this property.

Blue Gum Road

Counsel for the defendants submitted that John had not adduced any evidence to prove that the Partnership purchased Blue Gum Road, and that there was no credible evidence to support the conclusion that that property was purchased in the pursuit of the Joint Endeavour.[118] I am unable to accept that conclusion, having regard to the evidence adduced on the Application.
[118] Defendants' submissions [58] - [59].
Ray's evidence was that he purchased Blue Gum Road in early 1988 for $260,000.[119] He is named as the registered proprietor on the certificate of title. Ray deposed that he and Roslyn then commenced farming in partnership at Blue Gum Road under the trading name of RA and RE Gerovich.[120] Ray's evidence was that he paid the purchase price for Blue Gum Road by borrowing $15,000 from a friend, and that he took out a bank loan for $250,000.[121]
[119] Ray's first affidavit [75] - [77].
[120] Ray's first affidavit [28].
[121] Ray's first affidavit [78], [81].
However that mortgage was granted by both the Company, and by Ray, over several parcels of land, and was given as security for funds advanced both to Ray, and to persons described as 'Debtors' under the mortgage, namely the sixth defendant, and each of Ray, John, Max, Anthony and Milka.[122]
[122] Ray's first affidavit, Annexure RAG27, page 242.
Ray deposed that in 1988, he paid out that loan and released the Debtors named in the mortgage, and that he then obtained a further loan for $300,000, and has granted mortgages over Blue Gum Road to secure that loan.[123]
[123] Ray's first affidavit [82].
Ray's evidence was that after he purchased Blue Gum Road, he started his own farming partnership with Roslyn, that he also operated a feed milling business, and that he used the income from these ventures to pay the loan he took out to pay for Blue Gum Road.[124] Ray deposed that the Partnership Business did not pay any money in respect of the mortgage over Blue Gum Road.[125]
[124] Ray's second affidavit [44]
[125] Ray's second affidavit [44].
John's case is that Blue Gum Road was paid for using Partnership Funds. It appears that John says that that was the case for two reasons. First, John's evidence was that at the time of the purchase of Blue Gum Road, Ray was working on the Farm on a full time basis, while Anthony, Max and John were all working in the concrete business on a full time basis. John deposed that that was the case at least up until the time that he left the Farm in 1990.[126] He deposed that 'there was no other source of funds as everyone was working for the Family Business and it is because of this reason that I verily believe that Ray serviced the mortgage from the [Partnership] Bank Account.'[127]
[126] John's affidavit [233].
[127] John's affidavit [221].
Secondly, John's case is that Ray sold a property for which the Company was the registered proprietor, but which was paid for by the Partnership, namely 600 Meanwood Road,[128] and used the proceeds of that sale to repay the loan on Blue Gum Road. John deposed that he recalled Ray telling him that he intended to sell 600 Meanwood Road 'so he could use the profit for the loan on [Blue Gum Road].'[129] John deposed that 600 Meanwood Road was sold in May 1988, some months after the purchase of Blue Gum Road (in January 1988).[130] John deposed that 'the money received from the sale of 600 Meanwood Road was used towards the payment of the mortgage'[131] on Blue Gum Road.
[128] John's affidavit [187] - [190].
[129] John's affidavit [227].
[130] John's affidavit [226].
[131] John's affidavit [234].

Ray disputed that the proceeds of the sale of 600 Meanwood Road had been used to purchase Blue Gum Road. However, he acknowledged that 'it is difficult [to] remember precisely the financial arrangements in respect of the sale of the Meanwood Road Property, as we no longer have financial records that deal with this. However, I do not believe that any money from the sale of [that] Property went towards the purchase of [Blue Gum Road] as there is evidence … that $250,000 of the $260,000 purchase price for the purchase … was borrowed'.[132] That evidence does not exclude the possibility that proceeds of the sale of 600 Meanwood Road were used to repay the mortgage on Blue Gum Road.
[132] Ray's second affidavit [48].
In my view, it cannot be said that John has failed to point to any credible evidence which supports his case. Having regard to John's evidence, including his evidence as to how the Gerovich family organised and pooled their labour and finances, there is clearly a dispute on the evidence as to whether funds of the Gerovich family were used to repay the loan secured by the mortgage over Blue Gum Road. There is also a question about the use of the proceeds of the sale of 600 Meanwood Road to pay off part of the loan for the purchase of Blue Gum Road.
Having regard to all of the evidence, I am not persuaded that the defendants have met the onus that is on them, namely to establish that there is no real question to be tried as to whether John has, or had, an equitable interest in Blue Gum Road, so that it may be concluded that the defendants have a good defence to John's claim with respect to this property.

28 Kelly Street

The defendants' case is that 28 Kelly Street was purchased by Max in 1989, and that he has been the registered proprietor since then.[133] He is named as the registered proprietor in the certificate of title.[134]
[133] Defendants' submissions [24]; Ray's first affidavit [84].
[134] Ray's first affidavit, Annexure RAG29.
Ray's evidence was that initially, Max proposed that members of the Gerovich family should purchase 28 Kelly Street. Ray deposed that members of the family, including he and John, did not agree with the proposal.[135] Ray's evidence was that he told Max that if he wanted to buy the property, he would have to do it himself, and that Max did so.[136]
[135] Ray's second affidavit [66].
[136] Ray's second affidavit [66].
Counsel for the defendants submitted that John accepted that the Gerovich family agreed not to buy 28 Kelly Street, and there was no evidence to support the conclusion that this property was ever Partnership property.[137]
[137] Defendants' submissions [26].
Max deposed that the purchase price for 28 Kelly Street was 'partly funded by a mortgage'.[138] He says that he paid out the mortgage some time ago, although it is still registered on the title.[139] He deposed that the payments made in respect over the mortgage 'were made by me from my drawings from the entity running the [concrete business] at the time.'[140] I understood his evidence to be that he made the mortgage repayments out of his drawings from the Partnership, which was running the concrete business at the time.
[138] Max's first affidavit [7].
[139] Max's first affidavit [7].
[140] Max's second affidavit [13].
John acknowledges that despite the proposal that the Gerovich family purchase 28 Kelly Street, they did not do so, and the property was purchased in Max's name only.[141] Instead, John's claim that this property was Partnership property, or property acquired in the pursuit of the Joint Endeavour, appears to be based solely on John's belief that the mortgage payments on 28 Kelly Street came out of the Partnership Funds.
[141] John's affidavit [236] - [237].
John's evidence was that 'although the property was registered in Max's name, he had no independent source of income. At that time we all continued to work together as we had for many years'.[142] John's evidence was that the 'mortgage payments for 28 Kelly Street were paid from income received from [the concrete business] and the Farm as there was no other source of income because everyone was working for the Family Business'.[143]
[142] John's affidavit [241].
[143] John's affidavit [242].
Counsel for the defendants submitted that John had no evidence to support his assertion that Max had no independent source of income to purchase 28 Kelly Street, or that mortgage repayments for this property were paid from income received from the Gerovich family's businesses.[144] For the reasons outlined above at [41] and [87], I am unable to accept that submission.
[144] Defendants' submissions [25].
Furthermore, there was evidence that Ray and Roslyn paid about $25,000 to erect a security fence around 28 Kelly Street and to upgrade the power to the property.[145] Ray also deposed that he had arranged for a tenant for the property.[146] Ray did not explain how it was that he had authority to take those steps, although, as I have already mentioned, he did depose that since about 1988, he and Roslyn have paid to maintain his parents and Max.[147]
[145] Ray's first affidavit [85].
[146] Ray's first affidavit [85].
[147] Ray's first affidavit [127].
Max's evidence on these steps by Ray was somewhat curious. He deposed that 'I am aware from my own observations and from my conversations with [Ray] that he had recently had a security fence erected around the property and had three phase-power installed and has now found a tenant for this property'.[148] Max did not explain why it was that Ray had taken that action, nor was there anything to suggest that he had requested or authorised Ray to do so.
[148] Max's first affidavit [4].
No doubt the explanation for Ray’s conduct will be fleshed out at trial. For present purposes, this evidence does not advance the Application.
In my view, it cannot be said that John has failed to point to any credible evidence which supports his case that while Max is the registered proprietor of 28 Kelly Street, the mortgage over the property was paid out of Partnership Funds. Having regard to John's evidence, including his evidence as to how the Gerovich family organised and pooled their labour and finances, it cannot be said that John's case is hopeless. I am not persuaded that the defendants have met the onus that is on them, namely to establish that there is no real question to be tried as to whether John has, or had, an equitable interest in 28 Kelly Street, so that it may be concluded that the defendants have a good defence to John's claim with respect to this property.

(b) The defendants' contention that the Partnership came to an end, or the Joint Endeavour failed, in 1993, so that John's causes of action are time barred

This aspect of the defendants' case was that the evidence before the Court suggests that the Partnership came to an end in about 1993, and that any cause of action John may have had has been brought outside the limitation period.[149] Counsel for the defendants submitted that s 27 of the Limitation Act 2005 (WA) would apply, and that because the Partnership (and, presumably the Joint Endeavour) came to an end in 1993, John’s action, in so far as he seeks equitable relief, was commenced well outside the limitation period imposed by that section.[150]
[149] ts 16.
[150] Defendants' submissions [78].
Ray's evidence was that the Partnership ceased operating and earning money by 30 June 1993, and that there was no business carried on by the Partnership after that date.[151] There does not appear to be any dispute, however, that the Partnership continued to own, and have the benefit of, some property after that date.
[151] Ray's first affidavit [42].
Having regard to the evidence adduced on the Application, it is apparent that there is clearly a factual dispute about whether, and if so, to what point, the Partnership (or the Joint Endeavour) continued beyond 1993.[152] That cannot be resolved other than at trial. The existence of that factual dispute means that it is not possible to reach any conclusion about the operation of relevant limitation periods in relation to John's causes of action. This aspect of the Application must therefore be dismissed.

(c) The defendant's contention that John has not demonstrated that there exists a basis on which the Court could order a sale of any of the properties under s 126 of the PL Act

[152] See, for example, Ray's second affidavit [69], [71].

Counsel for the defendants contended that John had not advanced any credible evidence to support a claim, under s 126(2) of the PL Act, that John was a party ‘interested' in the Properties, or that the sale of the Properties would be for the ‘benefit' of the parties interested. This part of the Application should be dismissed for three reasons.
First, as counsel for the defendants accepted, the Application in respect of this claim was, in part, premised on the contention discussed above, namely that John had no credible evidence to support a claim that he is a person 'interested' in the disputed Properties.[153] As I understand his case, John says that he is 'interested' in the disputed Properties because he has an equitable interest in the Properties, because those properties are Partnership Properties, or because they were purchased as part of the family's Joint Endeavour. For the reasons set out above, the defendants have failed to establish that John's claim to an interest in the disputed Properties is untenable.
[153] ts 16.
Secondly, counsel for John contended that the application for the sale of the disputed Properties was advanced as a stand-alone basis for relief, but accepted that it may also be viewed as alternative or supplementary relief to the primary relief sought, namely an order for an account of the Partnership property (consequent on a finding that the disputed Properties are Partnership property), or for relief in the form of declarations that the disputed Properties are held on a constructive trust for all of the members of the Gerovich family, on the basis that the disputed Properties were purchased as part of the Joint Endeavour. If John is successful in establishing that he has an interest in the disputed Properties on either basis, then it may be that the defendants would wish to buy out John's interest, or the defendants might be willing, voluntarily, to sell the Properties and to divide the proceeds amongst all those with an interest in them. It may or may not be necessary to consider whether an order should be made to compel the sale of any of the Properties, and if so, to consider the basis on which such an order might be made. (I note also that in the event of a dissolution of a partnership, it is open to a partner to apply to the court to wind up the business and affairs of the firm.[154])
[154] Partnership Act 1895 (WA) s 50.
If at that stage John presses for an order pursuant to s 126(2) of the PL Act, then that will be the point in time at which it will be appropriate to consider whether the sale of the land would be for the benefit of the parties interested (as s 126(2) requires). In those circumstances, I am not persuaded that it is presently appropriate to consider striking out John's cause of action under s 126(2) of the PL Act on the basis that John does not have any credible evidence to support the view that a sale of the disputed Properties would not be for the benefit of the parties interested.
Thirdly, John seeks relief under s 126(2) of the PL Act in respect of all of the Properties, and not just the disputed Properties. The defendants do not seek to strike out John's cause of action under s 126(2) in respect of the Properties, apart from the disputed Properties. In my view, in circumstances where John's interest arises from a claim that the Properties are Partnership Properties, or were acquired in the pursuit of the Joint Endeavour, the question whether the sale of any or all of the Properties would be in the best interests of those parties interested in them, may warrant consideration by reference to all of the Properties collectively, as well as to the Properties individually.

(d) The defendants' contention that they have a complete defence to John's claim for the winding up of the Company

The basis for the summary judgment application in respect of the action against the Company was that in 2015, the defendants offered to transfer one share in the Company to John, but he has not responded to that offer.[155] The defendants say that that offer constituted a complete defence to John's claim for a winding up of the Company.
[155] Ray's first affidavit [117] - [118], Annexure RAG49; Ray's second affidavit [72].
This part of the Application must also be dismissed. The relief which John seeks as against the Company is a declaration that he is the beneficial owner of one share, and an order for the winding up of the Company. The latter relief is sought on the basis that the Company is being operated solely for the benefit of the defendants and to the exclusion of John. The relief is sought pursuant to s 461(k) of the Corporations Act 2001 (Cth) on the basis that there are irreconcilable differences between the Company's members and John. An offer to transfer John's share in the Company to him is hardly an answer to that part of his claim.
Furthermore, as counsel for the defendants acknowledged, this part of the Application is concerned with the question whether particular relief ‑ namely the winding up of the Company ‑ should be granted in all of the circumstances.[156] Counsel accepted that that question did not concern the question whether John had a cause of action itself. When there is no question that the Court has power to grant particular relief, the question whether that relief would, or should, be granted is one that can only be determined in light of the facts established at trial. Summary judgment is not appropriate in relation to this part of the action.
[156] ts 19.

Final observations

Nothing in the conclusions I have reached should be construed as any assessment of the merits of the claims made by John or of the defendants' response to those claims. All parties should be aware of the difficulties they face in litigating about events which occurred so many years ago, and in circumstances where it appears there may be limited (if any) available documentary evidence. As I have already observed, determination of the issues in dispute may well involve questions of credibility of the evidence given by witnesses (that is, members of the Gerovich family) at trial. As counsel for John and for the defendants acknowledged at the hearing of the Application, a trial of the action is likely to be lengthy, and necessarily very expensive. This is a clear case where the parties should endeavour to reach agreement to resolve their dispute, bearing in mind commercial realities as opposed to family dynamics.

Orders

The Application will be dismissed. The parties should confer and endeavour to reach agreement about the orders which should be made both to dispose of the Application, and to progress the action. Bearing in mind the observations set out above, the programming orders which should be made in the first instance should be directed to completing only such steps as are necessary to enable the parties to attend a mediation conference at the earliest opportunity.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD
23 MAY 2018