JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HESSE -v- HARDIE [No 2] [2025] WASC 427
CORAM: MASTER RUSSELL
HEARD: 9 OCTOBER 2024
DELIVERED : 7 OCTOBER 2025
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 - Pleadings - Strike out application - Application to strike out re-amended statement of claim - Order 20 rule 19 Rules of the Supreme Court 1971 (WA) - Whether matters pleaded disclose reasonable cause of action - Whether matters pleaded may prejudice, embarrass or delay fair trial of the action - Where aspects of pleaded case pleaded at high level of generality - Turns on own facts
Equity - Fiduciaries - Trusts - Accessorial liability - Liability of third parties for breach of fiduciary duty - Barnes v Addy - Second limb - Knowing assistance and participation in breach of fiduciary duties - Requirements of knowledge of dishonest and fraudulent design
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 19, O 20 r 19(1)(a), O 20 r 19(2)
Result:
Defendants' application to strike out parts of re-amended statement of claim granted
Plaintiff to have leave to replead
Category: B
Representation:
Counsel:
| Plaintiff | : | D I Connor |
| First Defendant | : | C V Eastwood |
| Second Defendant | : | C V Eastwood |
| Third Defendant | : | C V Eastwood |
Solicitors:
| Plaintiff | : | Connor Legal |
| First Defendant | : | Eastwood Law |
| Second Defendant | : | Eastwood Law |
| Third Defendant | : | Eastwood Law |
Cases referred to in decision(s):
Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; (2018) 265 CLR 1
Barnes v Addy (1874) LR 9 Ch App 244
Byrnes v Kendall [2011] HCA 26; (2011) 243
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Farah Construction Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) FCR 296
Gunns Ltd v Alishah [2009] TASSC 45; (2009) 19 Tas R 38
Hesse v Hardie [2023] WASCA 173
Horwood v Davenport [2014] WASC 436
Sancho Bakery Pty Ltd (In Liquidation) v Durolek [2024] WASC 81
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Westpac Banking Corporation v Anderson [2017] WASC 106
Yeshiva Properties No 1 Pty Ltd v Marshall [2005] NSWCA 23; (2005) 219 ALR 112
MASTER RUSSELL:
Introduction
The plaintiff, Geoffrey Eric Hesse, is the only child of the late Brian Cuthbert Hesse, who died in 2018. With no disrespect to the plaintiff, the deceased or others referred to in these reasons, once identified, I will refer to them by their first names.
Geoffrey is a 'Specified Beneficiary' and a 'General…
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- AGLC
- Hesse v Hardie [No 2] [2025] WASC 427
- Case
- [2025] WASC 427
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the defendant's re-amended statement of claim met the requirements for a valid pleading. Specifically, it had to determine whether the pleadings disclosed a reasonable cause of action and whether they might prejudice, embarrass, or delay the fair trial of the action. The court also needed to consider the established principles of pleadings, including the need for particularity and the function of pleadings in defining and limiting the issues for decision.
The court held that the 21-day limit for bringing a strike out application reflected the importance of such applications being made promptly to avoid unnecessary expense. The court applied the well-established principles of strike out applications, which were set out in Vantage Holdings Group Pty Ltd v Donnelly [No 4] and affirmed in English v Vantage Holdings Group Pty Ltd. These principles emphasized the need for pleadings to be sufficiently particular, to state the relief or remedy claimed, and to avoid pleading at too high a level of generality. The court noted that while it may determine difficult questions of law on such an application, it is usually appropriate to leave such questions for trial. The court also stressed the importance of pleadings in promoting case management and ensuring a fair trial.
The court ultimately found that the defendant's re-amended statement of claim did not disclose a reasonable cause of action and that it might prejudice, embarrass, or delay the fair trial of the action. The court held that the pleadings were too general and did not meet the requirements for establishing knowing assistance in a breach of fiduciary duties. The court granted the plaintiff's application to strike out the defendant's re-amended statement of claim and ordered the defendant to file an amended statement of claim within 28 days.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The 21-day limit to bring an application to strike out a pleading reflects the view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred. Ordinarily, where there is a delay, it should be explained, and the onus is on the applicant to demonstrate that it is justifiable in the circumstances.[40] [40] See Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to, which also apply to an application under O 16 RSC and the same principles apply to an application under O 20 r 19 RSC. The legal principles relating to a strike out application are well established. They were comprehensively set out by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4],[41] and affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd,[42] as follows: [41] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].[42] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56] (Murphy and Vaughan JJA), [163] (Mitchell JA agreeing).The principles relevant to the strike out application are as follows:(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;(c)a statement of claim must state specifically the relief or remedy claimed;(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;(e)in alleging no reasonable cause of action:(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues. (citations omitted)