Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [No 2]
[2022] WASC 84
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GROVE -v- SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE [No 2] [2022] WASC 84
CORAM: MASTER SANDERSON
HEARD: 3 MARCH 2022
DELIVERED : 11 MARCH 2022
PUBLISHED : 11 MARCH 2022
FILE NO/S: CIV 1369 of 2021
BETWEEN: JOHN GROVE
Plaintiff
AND
SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
First Defendant
SIMON DIRK KENWORTHY-GROEN
Second Defendant
ANDREW HENDRICK GROVE
Third Defendant
GROVE SUPERANNUATION PTY LTD AS TRUSTEE FOR THE GROVE SUPERANNUATION FUND (ACN 113 205 495)
Fourth Defendant
Catchwords:
Practice and procedure - Application for further and better particulars - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | P D C Robinson |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | R Nash |
Solicitors:
| Plaintiff | : | Williams & Hughes |
| First Defendant | : | Fort Knox Legal |
| Second Defendant | : | Fort Knox Legal |
| Third Defendant | : | Dwyer Durack |
| Fourth Defendant | : | Croftbridge |
Case(s) referred to in decision(s):
Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [2022] WASC 69
MASTER SANDERSON
By minute of amended chamber summons filed 3 February 2022, the plaintiff sought an order that the fourth defendant provide further and better particulars of paragraph 21(b) of the second further re‑amended defence filed 12 November 2021. (For the purposes of these reasons I will simply refer to the second further re-amended defence as the 'defence'). The application was brought under O 20 r 13(3) of the Rules of the Supreme Court 1971 (WA).
To put the application in context, it is necessary to refer to the plaintiff's amended writ of summons filed 10 August 2021. By this document, the fourth defendant was added as a party to these proceedings. An amended statement of claim was endorsed on the amended writ of summons and the claim against the fourth defendant was pleaded out. While the fourth defendant was drawn into the proceedings, the plaintiff's main claim was and remains against the first, second and third defendants. In a recently published decision in these proceedings, I dealt with an application to strike out certain paragraphs of the amended statement of claim. In the course of that decision, I gave a brief summary of the facts: see Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [2022] WASC 69. I would incorporate that summary in these reasons without repeating what I said.
By way of broad overview, this case concerns whether or not the assets of an entity known as the B.E. Lynn Trust were properly dispersed by the trustee. Central to this present dispute is par 17 of the amended statement of claim. It is in the following terms (marking up omitted):
17. By resolution dated 21 August 2015 (executed on 29 August 2015) William as trustee of the B.E. Lynn Trust purportedly resolved that the corpus of the B.E. Lynn Trust be distributed as follows:
Beneficiaries
John Grove - The first $570,000.00 is to be distributed to Mr. John Grove. This distribution will be satisfied by deducting $270,000.00 from his Debit loan account with the BE Lynn Trust and $300,000.00 from his company's Debit loan account (Talmalmo Holdings Pty Ltd) in the books of the trust.
Simon Grove - 50% of the remainder, from which will be deducted his Beneficiary Current Account balance of $84,074.90Dr.
Andrew H Grove - The balance, to which will be added his Beneficiary Current Account balance of $87,287.44Cr.
(the August 2015 Resolution).
Particulars
A copy of the August 2015 Resolution can be inspected at the offices of the Plaintiff’s solicitors. A copy may be inspected at the offices of the Plaintiff’s solicitors.
This paragraph and the rest of the pleading appear to raise at least two issues. First, was the August 2015 resolution (to adopt the definition found in the amended statement of claim) valid? If it was not then, based upon what is contained elsewhere in the pleading, the plaintiff says he would have been entitled to 25% of the assets of the B.E. Lynn Trust. The second question is whether, if the August 2015 resolution is valid, the plaintiff is entitled to receive anything from the assets of the trust. The plaintiff suspects, but is at present unable to prove, the assets of the trust would have been such that even if $570,000 was distributed properly under the August 2015 resolution, he would be entitled to something more.
The claim against the fourth defendant found in pars 35D through to 35I allege the fourth defendant received assets which were improperly distributed from the B.E. Lynn Trust. The plea is the fourth defendant was knowingly concerned in breaches of trust which resulted in assets passing to the fourth defendant.
Paragraph 21 of the fourth defendant's defence deals with par 17 of the statement of claim. It is in the following terms (marking up omitted):
21.As to paragraph 17 of the Statement of Claim, the Fourth Defendant:
(a)admits that William, as the trustee of the B.E. Lynn Trust, resolved that the corpus of the B.E. Lynn Trust be distributed in the terms of the August 2015 Resolution as pleaded; and
(b)on its proper construction, the effect of the August 2015 Resolution, was that save for:
(i)the Plaintiff's debit loan account with the B.E. Lynn Trust in the amount of $270,000; and
(ii)the Talmalmo Holdings Pty Ltd’s debit loan account with the B.E. Lynn Trust in the amount of $300,000,
the remaining assets of the B.E. Lynn Trust ('Remaining Trust Assets') were thereafter held by the trustee for the following beneficiaries in the following shares:
(iii)the Second Defendant: 50% less his Beneficiary Current Account balance of $84,074.90; and
(iv)the Third Defendant: the remainder.
Paragraph 21 in its entirety is unremarkable. In fact, the fourth defendant could probably simply have admitted par 17 of the amended statement of claim and the effect would have been no different from the present pleading. Furthermore, par 35 admits the fourth defendant received assets that were distributed from the B.E. Lynn Trust. So the fourth defendant's position then is this. It says the August 2015 resolution was valid and, as a result, certain assets passed to the second and third defendants. The second and third defendants then passed some or all of those assets to the fourth defendant. If the August 2015 resolution was not valid, then assets received by the fourth defendant, pursuant to that resolution, will have to be disgorged. But that is not really the concern of the fourth defendant. It sees itself as a party to the proceedings only to facilitate the recovery of any assets which may have been improperly distributed pursuant to the August 2015 resolution. Beyond that, it has no interest in the outcome of these proceedings.
What the plaintiff is seeking by its request is details of any transactions pursuant to which the fourth defendant received assets from the B.E. Lynn Trust. With respect, the request is not germane to the issue raised between the plaintiff and the fourth defendant. If and when an account was ordered in relation to the B.E. Lynn Trust, then it may be the fourth defendant would have to account to the plaintiff. But that is not what is raised at present. To seek details of the transactions is not in any way relevant to the claim by the plaintiff against the fourth defendant. As I have said, the scope of that claim is really in the nature of a tracing exercise. There is no doubt the fourth defendant is a proper party to the proceedings. But it really is a passive party. It certainly is not in a position where it has, at present, to detail to the plaintiff assets it has received from the B.E. Lynn Trust.
On that basis, I would dismiss the plaintiff's application against the fourth defendant. The plaintiff ought pay the costs of the application, including the reserved costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Court Officer
11 MARCH 2022
0
1
0