Hesse v Hardie - [2022] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HESSE -v- HARDIE [2022] WASC 156
CORAM:   MASTER SANDERSON
HEARD:   16 FEBRUARY 2022
DELIVERED          :   9 MAY 2022
PUBLISHED           :   9 MAY 2022
FILE NO/S:   CIV 1011 of 2021
BETWEEN:   GEOFFREY ERIC HESSE
Plaintiff
AND
VERONICA MARIE HARDIE
First Defendant
B.C.H. NOMINEES PTY LTD as trustee for THE B.C.H. FAMILY TRUST
Second Defendant
KEIAN HOLDINGS PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Application by defendant for summary judgment - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Summary judgment granted to defendant

Category: B

Representation:

Counsel:

Plaintiff	:	DI Connor
First Defendant	:	C Eastwood
Second Defendant	:	C Eastwood
Third Defendant	:	C Eastwood

Solicitors:

Plaintiff	:	Friedman Lurie Singh & D'Angelo
First Defendant	:	Eastwood Law
Second Defendant	:	Eastwood Law
Third Defendant	:	Eastwood Law

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

Breen v Williams (1996) 186 CLR 1
Brynes v Kendle (2011) 243 CLR 253
Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6
IMO The Will and Estate of Owen Charles Brown (dec) [2016] VSC 258
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14

MASTER SANDERSON:

This is the defendants' application to strike out the plaintiff's amended statement of claim dated 5 August 2021 (ASOC). The defendants require an extension of time to bring this application. The application was not brought until 5 October 2021, well outside the 21 day time limit allowed for the making of a summary judgment application. The defendants offer some explanation for the delay but really this is one of those cases where the defendants say the strength of their application is such it would be in the interests of justice to grant the extension to bring the action to an end. It is appropriate then to consider the merits of the defendants' application before dealing with the application for an extension. For the sake of completeness, I should note that the defendants seek, in the alternative, to strike out the ASOC. However, that is very much a secondary position. The defendants maintain they are entitled to summary judgment.
There was no dispute between the parties as to the principles applying when a defendant applies for summary judgment. These principles were set out by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]. Without repeating what was said in that decision, two points are to be noted. First, summary judgment is only available in the clearest of cases. Second, for the purposes of the summary judgment application, the plaintiff is confined to the facts as pleaded in the statement of claim and it must be assumed those facts will be proved at trial. A summary judgment application is not an occasion to decide any issue of fact between the parties.
Before dealing with the statement of claim in detail, I should offer an overview of the plaintiff's claim. The second…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hesse v Hardie

Details

AGLC: Hesse v Hardie [2022] WASC 156
Case: [2022] WASC 156
Decision Date

CaseChat Overview and Summary

In the case of Hesse v Hardie, the plaintiff, Geoffrey Eric Hesse, sought to establish that the defendant Veronica Marie Hardie, as well as the second and third defendants, owed fiduciary duties to him in their capacities as trustees of the BCH Family Trust. The plaintiff alleged that the defendants breached these fiduciary duties by failing to ensure sufficient funds were available from the trust to pay him an annuity. The defendants, however, argued that the plaintiff's claims were contradictory and that no such fiduciary duty existed. The case reached the Supreme Court of Western Australia, where the Master, Sanderson, was tasked with deciding the application for summary judgment brought by the defendants.

The legal issue at hand was whether the defendants were entitled to summary judgment, given that the plaintiff's claims seemed to rely on establishing a positive duty on the part of the trustees, which was not recognised in Australian law. The defendants argued that the plaintiff's claims were contradictory and that no fiduciary duty existed that would obligate the trustees to ensure sufficient income for annuity payments. The plaintiff, on the other hand, maintained that the trustees did owe such a duty and that the breaches alleged were valid.

Master Sanderson found that the plaintiff's claims were not supported by law. The court held that fiduciary duties in Australia are prescriptive and do not include a positive obligation to take specific steps to ensure income is generated for annuity payments. The court relied on the High Court decision in Breen v Williams to support this view. The court also found that the first and third defendants did not owe any fiduciary duties to the plaintiff. Therefore, the court concluded that the plaintiff's claims could not succeed, and summary judgment was appropriate.

In light of the outcome, the court considered whether an extension of time should be granted to the defendants for bringing the summary judgment application, given that it was filed beyond the 21-day time limit allowed by the Rules of the Supreme Court 1971 (WA). The court determined that it would be in the interests of justice to grant the extension, as litigating the matter further would be futile given that the plaintiff's claims were unlikely to succeed.

The final orders of the court were to be determined through further discussion between the parties, with the possibility of short submissions from each party if an agreement could not be reached within 7 days of the publication of the reasons for the decision.

Orders