Lamers v Lamers (No 3) - [2019] VSC 63

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

S CI 2015 05124

ANDREW JOHN LAMERS	Plaintiff
v
JOHANNES ANTONIUS LAMERS	First Defendant
ORANA PARK PTY LTD (ACN 087 109 985) both in its own capacity and as trustee of the John Lamers Family Trust	Second Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2019
DATE OF JUDGMENT:	14 February 2019
CASE MAY BE CITED AS:	Lamers v Lamers and anor (No 3)
MEDIUM NEUTRAL CITATION:	[2019] VSC 63

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PRACTICE AND PROCEDURE – amendment to statement of claim – whether proposed amendments relating to construction of a trust deed should be refused because they have no real prospect of success – held: amendments allowed, question of construction is better considered at trial – consideration of Jenkins v Ellett [2007] QSC 154 and Mercanti v Mercanti [2016] WASCA 2016 – whether introduction of a new claim arising from already pleaded facts should be refused on ground of delay or being statute barred – held: delay sufficiently explained and limitation issue better considered at trial – consideration of Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 – whether joinder of new defendant and new claim in negligent misstatement against that defendant should be refused for delay, being statute barred or for inadequate pleading of duty and loss – held: refused for inadequate pleading of loss – observations on the difference between detriment in proprietary estoppel and loss in negligent misstatement.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P H Caillard	Oakleys Legal
For the Defendants	Mr D B Clough	Macpherson Kelley

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Proposed Trust allegations............................................................................................................... 3

Submissions................................................................................................................................... 5
Clause 18............................................................................................................................... 5
Clause 19............................................................................................................................... 7

Discussion and conclusion.......................................................................................................... 8

Proposed incorrect payment claim.................................................................................................. 9

Proposed joinder of Birch Ross Barlow (BRB)........................................................................... 12

Delay............................................................................................................................................. 12
Pleading of duty and loss.......................................................................................................... 14
Statute barred............................................................................................................................... 17

Conclusion and orders.................................................................................................................... 17

HER HONOUR:

Introduction and summary

This is an application to amend the statement of claim filed with the writ on 30 September 2015. The defendants filed their defence shortly thereafter, on 2 November 2015. The plaintiff (Andrew) seeks relief against the first defendant (John), his uncle, and the second defendant (OPPL), a company in which they are each shareholders and of which they are the two directors, relating to a dairy farming enterprise near Leongatha. Andrew alleges that as a result of representations made to him in relation to a family trust, the John Lamers Family Trust (Trust) and John’s will, and by reason of a joint endeavour conducting the dairy farming enterprise, he has acted to his detriment. In the statement of claim, Andrew seeks declarations that OPPL holds its interest in certain land on trust for the Trust or for him, and that John holds his interest in OPPL on trust for Andrew. In the alternative, he seeks equitable compensation or equitable damages.

The…

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 Lamers v Lamers (No 3)

Details

AGLC: Lamers v Lamers (No 3) [2019] VSC 63
Case: [2019] VSC 63
Decision Date: 14 February 2019

CaseChat Overview and Summary

In this case, the parties were involved in a dispute regarding family law matters, specifically concerning amendments to a statement of claim. The case was heard in the Supreme Court of Queensland. The plaintiff sought to amend the statement of claim to include new allegations relating to the construction of a trust deed, introduce a new claim arising from facts already pleaded, and join a new defendant with a new claim for negligent misstatement.

The legal issues the court was required to decide included whether the proposed amendments concerning the construction of the trust deed should be refused due to lack of prospect of success, whether the introduction of a new claim should be refused on the ground of delay or being statute barred, and whether the joinder of a new defendant and a new claim for negligent misstatement should be refused due to delay, being statute barred, or for inadequate pleading of duty and loss.

The court allowed the amendments relating to the construction of the trust deed, holding that the question of construction was better considered at trial. It considered the cases of Jenkins v Ellett and Mercanti v Mercanti in reaching its decision. The court also allowed the introduction of a new claim, finding that the delay was sufficiently explained and that the limitation issue was better considered at trial. It referred to the case of Wardley Australia Ltd v Western Australia in its reasoning. However, the court refused the joinder of the new defendant and the new claim for negligent misstatement due to inadequate pleading of loss. The court observed that there was a difference between detriment in proprietary estoppel and loss in negligent misstatement.

The court made orders allowing the amendments to the statement of claim, except for the joinder of the new defendant and the new claim for negligent misstatement. The case will proceed to trial with the allowed amendments.

Orders