Lamers v Lamers (No 4)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2015 05124

ANDREW JOHN LAMERS	Plaintiff
v
JOHANNES ANTONIUS LAMERS	First Defendant
ORANA PARK PTY LTD (ACN 087 109 895) both in its own capacity and as trustee of the John Lamers Family Trust	Second Defendant

---

JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2019
DATE OF JUDGMENT:	1 August 2019
CASE MAY BE CITED AS:	Lamers v Lamers & Anor (No 4)
MEDIUM NEUTRAL CITATION:	[2019] VSC 510

---

PRACTICE AND PROCEDURE – Leave sought to further amendment to statement of claim to add a further defendant – Whether objection is properly taken by existing defendants – Whether leave should be refused to add claim against proposed new defendant for being statute barred – Whether loss is sufficiently pleaded – Whether specific pleading is required of matters stipulates in s 51(1)(b) or s 59 of the Wrongs Act1958 (Vic) – Whether further particulars should be ordered – Leave granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J L Evans	Oakleys Legal
For the Defendant	Mr D B Clough	Macpherson Kelley

TABLE OF CONTENTS

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

Proposed claim against BRB............................................................................................................ 3

Proprietary estoppel claim against John and OPPL................................................................ 3
Proposed claim against BRB....................................................................................................... 6

Submissions........................................................................................................................................ 9

Defendant’s submissions............................................................................................................. 9
The claim is statute barred................................................................................................. 9
Pleading of causation and loss and damage................................................................. 10
Inadequate pleading of Wrongs Act requirements...................................................... 10
Request for particulars..................................................................................................... 11

Plaintiff’s submissions............................................................................................................... 11
The claim is statute barred............................................................................................... 12
Pleading of loss and damage........................................................................................... 12
Wrongs Act......................................................................................................................... 12
Request for particulars..................................................................................................... 13

Consideration.................................................................................................................................... 13

Is it appropriate for the current defendants to take these objections?................................ 13
Statute barred?............................................................................................................................. 15
Pleading of loss and damage.................................................................................................... 17
Wrongs Act......................................................................................................................... 18

Request for further particulars.................................................................................................. 21

Conclusion and orders.................................................................................................................... 22

HER HONOUR:

Introduction and summary

These reasons concern the plaintiff’s application made by summons filed 15 March 2019 to further amend his statement of claim. The plaintiff (also described in these reasons as ‘Andrew’) commenced the proceeding by writ and statement of claim filed 30 September 2015. The defendants filed their defence on 2 November 2015. Thereafter the proceeding has had a long interlocutory history, including a series of discovery disputes and a previous application to amend the statement of claim (‘Previous Application’) which was partly successful. [1] In these reasons I refer to my reasons in relation to that previous application as my ‘Previous Reasons’. In accordance with the orders made consequent on the Previous Reasons the plaintiff filed an amended statement of claim on 15 March 2019 (‘Amended Statement of Claim’).
[1]Lamers v Lamers and anor (No 3) [2019] VSC 63.

Andrew seeks relief against the first defendant (‘John’), who is 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 in relation to 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 sought declarations that OPPL holds its interest in certain land (‘Property’), of which OPPL is the registered proprietor, on trust for the Trust or for him, and that John holds his interest in OPPL on trust for Andrew. In the alternative, he sought equitable compensation or equitable damages.

In the Previous Application Andrew sought to add a number of allegations and claims relating to various purported variations to the Trust. Over the objection of the defendant, I allowed those amendments. Andrew also sought to add a further claim in relation to an alleged incorrect payment made by Andrew to John. Again, over the objection of the defendant that the claim was statute barred, I allowed those amendments. I did not, however, allow the proposed joinder of the firm of solicitors who previously acted for John and OPPL, in particular in relation to the Trust, and the proposed amendments that related to that joinder. In this application for leave to amend, Andrew again seeks to join that firm of solicitors, Birch Ross and Barlow (‘BRB’) on the basis of proposed repleading of the claim against it.

The proposed further amended statement of claim that was the subject of argument, and is the subject of these reasons, is the version that was handed up on the morning of the hearing on 27 June 2019 and marked Exhibit A (Proposed Further Amended Statement of Claim (‘PFASOC’)). The PFASOC responds to an aspect of the defendants’ objections by correcting references to the Australian Consumer Law (‘ACL’) in the form of proposed further amended statement of claim attached to the plaintiff’s Outline of Submissions dated 12 June 2019 (‘Plaintiff’s Outline’). The PFASOC replaces those references to the ACL in proposed paragraphs 43, 45 and the Prayer for Relief with references to the Fair Trading Act 1999 (Vic) as it was at the relevant time (‘FTA’). A further small correction to the PFASOC was made in the course of the hearing, to correct the internal reference in proposed paragraph 38 from paragraph 36 to paragraph 37.

The form of proposed further amended statement of claim attached to the Plaintiff’s Outline had earlier replaced the proposed further amended statement of claim exhibited to the affidavit in support of the summons.[2] That change is explained at least in part by a change in counsel for the plaintiff. The PFASOC now proposes to delete certain aspects of both the original statement of claim and the Amended Statement of Claim filed in accordance with my Previous Reasons. New aspects are also added to some existing allegations. In the Plaintiff’s Outline, current counsel for the plaintiff states that the intention is to both ‘simplify and clarify the essential nature of his primary claim, which is at its core a proprietary estoppel claim’.[3] The defendants seek further and better particulars of some aspects of the PFASOC but only take substantive objection to the pleading of the claim against BRB and so its proposed joinder. Part of that objection related to reliance on the ACL. That objection is now satisfied by replacement of reference to the ACL to the FTA.
[2]Affidavit of Trevor John Rickard, sworn 20 March 2019.
[3]Plaintiff’s Outline of Submissions in Support of Application for leave to add Third Defendant and File Further Amended Statement of Claim dated 12 June 2019 (‘Plaintiff’s Outline’), [5].

For the reasons that I will now elaborate I will grant leave to file a further amended statement of claim, substantially in the form of the PFASOC.

Proposed claim against BRB

The plaintiff submits that the proposed claim against BRB is an alternative claim, which will only arise if the primary claim, the proprietary estoppel claim against John and OPPL, fails. It follows that it is necessary to understand how that proprietary estoppel claim is proposed to be framed.

Proprietary estoppel claim against John and OPPL

The PFASOC continues to plead three sources for the proprietary estoppel claim against John and OPPL. The first is a joint dairy farming endeavour, commencing 1998 and at that time involving Andrew, John, and Andrew’s father and John’s brother, Gerard. This is pleaded from paragraph 11.

The second source of the claim is pleaded to be certain representations made by solicitor John Barlow of BRB to Andrew on or about 10 October 2000, when Andrew attended the offices of BRB to sign a Deed of Variation to the Trust (‘Trust Representations’). A form of the Trust Representations has been pleaded throughout in paragraph 7. Some amendments were made in the Amended Statement of Claim. The plaintiff now seeks to add two further representations, pleaded as sub-paragraphs a and d to proposed new paragraph 7. The plaintiff also seeks to plead that John Barlow made each of the Trust Representations on behalf of both John and OPPL, or alternatively on behalf of John. It is that plea that would make OPPL and John, or John, liable for the Trust Representations. The plaintiff now seeks to plead the Trust Representations as follows:[4]
[4]Single underlining represents amendments allowed in the Previous Application and incorporated into the Amended Statement of Claim; double underlining represents the amendments now sought by the PFASOC.

7.        On or about 10 October 2000, Andrew attended the offices of Birch Ross and Barlow and signed the 2000 Deed~~documents referred to in paragraph 6 above~~ in his capacity as a director of Orana Park. t~~he time of executing the documents referred to in paragraphs 5 and 6 above~~, At that meeting, it was represented to Andrew by John Barlow~~. On behalf of John,~~ that:
a.The Property was owned by Orana Park as trustee of the John Lamers Family Trust;
ab.      by signing the 2000 Deed as a director of Orana Park, Andrew would become the sole appointor under the John Lamers Family Trust upon the death of John provided he met the conditions set out in paragraph 6(a) above; and
bc.      on becoming the sole appointor, Andrew would take control of the trust and effectively inherit the Property ~~referred to in paragraph 8 below~~ on the death of John;
d.by signing the 2000 Deed, John would no longer have any power to alter the provisions of the Trust Deed with respect to the identity of the Appointor without Andrew’s consent.
(the Trust Representations)
~~Particulars~~

~~To the extent the Trust Representations were oral they consisted of the discussion between Andrew and John Barlow~~
Particulars

The Trust Representations at a. to c. were oral. Andrew attended the offices of Birch Ross Barlow at the request of John.
Shortly prior to attending the offices of Birch Ross and Barlow John told Andrew that he had signed documents relating to the John Lamers Family Trust and the Property. John then told Andrew that he also needed to sign those documents because he was the other director of Orana Park.
When Andrew attended the offices of Birch Ross Barlow, John Barlow made the Trust Representations. In particular, John Barlow said that the Property was owned by the Trust and that if Andrew satisfied the conditions referred to in paragraph 6(a) above then Andrew would take control of the trust and effectively become the owner of the Property after John died.
The representation at d. above was implied from the content of the representations a. to c. ~~referred to in the Particulars to Paragraph 6 aboveTo the extent that they were written, they consisted of the documents referred to in paragraphs 5 and 6 above.~~
7A.John Barlow made each of the Trust Representations on behalf of Orana Park and John, alternatively on behalf of John.

Those amendments are not opposed.

The third source of the proprietary estoppel claim is certain representations that Andrew alleges John made to him on 16 July 2012 about John’s will (‘Will Representations’). The Will Representations have been a feature of the plaintiff’s claim from the beginning, and no amendments are sought by this application.

The plaintiff pleads that he acted to his detriment in reliance on these three sources of his proprietary estoppel claim in paragraph 15 of the PFASOC. In my Previous Reasons I was concerned at this collective pleading of detriment, because the various matters relied upon occurred at different times.[5] The defendants do not, however, take objection to the collective nature of the plea, and I accept the submission of the plaintiff that the detriment pleaded in paragraph 15 is to be read as sequential and cumulative. A table of expenditure in five schedules setting out cash contributions that Andrew alleges he made in reliance on these three sources of his claim is Annexure A to the Amended Statement of Claim and PFASOC. Paragraph 16 of the PFASOC pleads that the improvements to the Property as reflected in Annexure A added to and increased the value of the Property. There is one proposed amendment to paragraph 15 in the PFASOC which is not opposed, and the plaintiff agrees to give particulars of it. I was not directed to any amendment proposed to Annexure A.
[5]Lamers (no 1), [43]; [45].

The PFASOC seeks to add a plea in proposed paragraph 21A that John resiled from the Trust Representations, the Will Representations and the pleaded Common Intention as and from June 2014. The Particulars allege in relation to the Trust Representations that John purported to remove Andrew as an appointor of the Trust by various deeds of variation and appointment commencing with a deed dated 13 June 2014. Particulars are also sought to be added of the allegations that John resiled from the Will Representations and the Common Intention. These amendments are not opposed.

The relief sought against John and OPPL is sought to be amended in a number of ways, none of which are opposed. The effect will be to substantially confine the relief sought against John and OPPL to equitable relief by way of declarations the Andrew has an equitable interest, of some dimension, in the Property and John’s shares in OPPL. The only monetary amount now sought against John or OPPL is in respect of the incorrect payment claim.

Proposed claim against BRB

The proposed claim against BRB is pleaded in proposed paragraphs 2A, and 34-46 of the PFASOC. It is a claim in negligent misstatement. Proposed paragraph 34 pleads that the claim is an alternative plea should the Court accept that one or more of the Trust Representations made by John Barlow were false and made without the defendants’ actual or ostensible authority. The defendants have previously pleaded in their defence that the Trust Representations as originally pleaded (if made, which is denied) were made without their authority. The effect of proposed paragraph 35 is that for the purposes of the alternative plea, it is assumed that John Barlow did not have the actual or ostensible authority of the defendants, or John, to make the Trust Representations.

Proposed paragraph 2A pleads that BRB is a firm of solicitors; that from at least 1998 until ceasing to act for John it provided legal services to both defendants; and in so doing accepted instructions from John in his own capacity and as a director of OPPL. Proposed paragraph 36 pleads that the Trust Representations, which were made by John Barlow, were made by BRB.

The duty owed by BRB to Andrew is pleaded at proposed paragraphs 37 and 38. The duty is said to have arisen because BRB ‘knew or ought to have known that [the Trust Representations] would be relied upon by Andrew who would be induced thereby to act to this detriment in the manner described in paragraph 15 above’. Proposed paragraph 39 pleads that Andrew did rely on the Trust Representations. Proposed paragraph 40 pleads that each of the Trust Representations was false. Proposed paragraph 41 then pleads breach of the duty in a number of ways. No objection is taken to the pleading of these elements of the proposed claim. The defendants do object, however, to the pleading of loss and damage, which is encompassed within proposed paragraph 42. That paragraph pleads both causation and loss and damage. It and the related paragraph 24 are in the following form:

42. By reason of the facts pleaded in paragraphs 34 to 41 above, Andrew has suffered loss and damage because, if properly advised, he would not have acted in the manner described in paragraph 15 above and/or taken additional steps to ensure that he owned the Property or became the appointor after the death of John.

Particulars

Andrew will not become the Appointor of the John Lamers Family Trust following the death of John. If Andrew is not found to be the appointor of the Trust and/or Orana Park is not the registered proprietor of the Property in its capacity as the trustee of the John Lamers Family Trust, then Andrew has suffered the following loss and damage:

(1) the loss of the economic value of Andrew’s claim against John, assuming that each of the matters pleaded in paragraphs 11 to 13 and 15 to 24 above were established.

(2) Alternatively to (1), the loss of the value of Andrew becoming the appointor of the John Lamers Family Trust on the death of John, where the Property was an asset of the John Lamers Family Trust,

Andrew otherwise refers to and repeats the particulars to paragraph 24(c) above

24. By reason of John resiling from the Trust Representations, Will Representations and/or Common Intention:~~In the premises,~~

a. Andrew is entitled to equitable relief in relation to the Property and/or two of John’s shares in Orana Park;

i.a. which were held by John and/or Orana Park pursuant to a constructive trust; and/or

ii.b. based in equitable and/or proprietary estoppel.

pursuant to the doctrine identified in ~~Mushinsky~~ Muschinski v Dodds (1985) 160 CLR 583, Donis v Donis (2007) 19 VR 577 and Sidhu v Van Dyke (2014) 251 CLR 505.

b) the relief to which Andrew is entitled may be conditioned on a finding as to:

i. whether or not Orana Park holds the Property as an asset of the John Lamers Family Trust; and

ii. whether or not the appointment of the Appointor of the John Lamers Family Trust, as established by either the 1999 Deed or the 2000 Deed, continues to be a term of the trust.

(c) the relief to which Andrew is entitled may be conditioned upon the value of:

i. the loss of the use of the Property (including dairy infrastructure) during John’s lifetime should the current lease be terminated;

ii. the cost of acquiring an equivalent substitute property with dairy infrastructure facility;

iii. the cost of building equivalent replacement dairy infrastructure on Devlins, Ritchies and Trewins property;

iv. the cost of obtaining an equivalent replacement house;

v. expense and labour invested by Andrew remaining in the Joint Endeavour (since 1999) which improved the value of the Property, which are described in Annexure A (including improvements made to his home located on the Property rather than his own property).

vi. contribution of the Devlins Property and Ritchies Property to the Joint Endeavour rather than farming those properties solely for his own benefit or leasing them to someone else.

Further particulars of the value of the above will be provided close to the hearing of this matter and will include expert evidence from a rural valuer, farm management consultant and/or an agricultural economist.

Submissions
Defendant’s submissions
The claim is statute barred

The defendants submit that the proposed claim in negligent misstatement against BRB is statute barred. This submission is based on the assertion that the proposed cause of action accrued on the first instance of loss, and having regard to the tables of expenditure attached to the PFASOC the defendants assert that the first relevant expenditure that occurred was 18 January 2001.[6] This is well before the Trust Representations are said to have been made, which was on 10 October 2000. I will consider this submission on the basis that it relates to the first expenditure by Andrew after that date, as this is the first that can be said to be in reliance on the Trust Representations. The first such expenditure was on 13 December 2010,[7] which is more than six years ago.
[6]Defendants’ Submissions re Leave to Amend and Joinder dated 24 June 2019 (‘Defendants’ Outline’), [8].
[7]Schedule 5 to the PFASOC, second item. The first items of expenditure in the other Schedules after 10 October 2000 are respectively 3 February 2011 (Schedule 1); 17 March 2011 (Schedule 2); 19 May 2011 (Schedule 3) and 18 January 2011 (Schedule 4).

Pleading of causation and loss and damage

The defendants take two objections to proposed paragraph 42. The first is to the allegation that Andrew would have taken ‘additional steps’ to obtain ownership of the Property or become the appointor of the Trust after the death of John. The objection is that this goes beyond the intent of the amendments as identified in the Plaintiff’s Outline. The Plaintiff’s Outline states that the intent of the proposed claim is to recover against BRB ‘the value of the expenditure’ relied upon in the proprietary estoppel claim.[8]
[8]Plaintiff’s Outline [8], [16].

The second objection is that the heads of damage identified in the Particulars to proposed paragraph 42 are vague and embarrassing (in the case of the ‘loss of the economic value of Andrew’s claim against John’) and misconceived (in respect of the loss of the value of becoming appointor).[9] The defendants contend that if the Property is an asset of the Trust, as this particular assumes, then being the appointor does not confer a proprietary interest and has no value.
[9]Defendants’ Outline [14].

Inadequate pleading of Wrongs Act requirements

The defendants contend that the PFASOC should plead matters that arise under ss 51(1)(b) and 59(1) of the Wrongs Act 1958 (Vic) (‘Wrongs Act’). In relation to s 51(1)(b), the defendants contend that whether it is appropriate to extend liability of BRB to cover the claimed loss suffered by Andrew in the absence of retainer is a significant issue, and so the material facts to establish that it is so appropriate should be pleaded.

Section 59(1) provides a defence in respect of the negligent provision of professional services based on ‘peer professional opinion’. The defendants contend that the PFASOC should plead whether the Trust Representations are alleged to have been made in the provision of professional services.

Request for particulars

The defendants seek further and better particulars in respect of some amendments which they contend are too vague or confusing to provide proper notice of how the claim is put. The requests are set out in the Defendants’ Outline. Those pressed are as follows:

a.The allegation that the First Defendant executed the 1999 Deed with the intention that the Plaintiff would become the appointor of the Trust following the First Defendant’s death: Proposed FASOC, [8(a)].
b.The First Defendant’s alleged representations to Gerard Lamers and the Plaintiff: Proposed FASOC, [11], [15].
c.The allegation that John Barlow’s statements are to be treated as representations by Birch Ross and Barlow (especially in the absence of a retainer): Proposed FASOC, [36].

…
e.The steps the Plaintiff have taken if he were properly advised: Proposed FASOC, [42], [46].
f.The loss of the value of the Plaintiff becoming the appointor of the Trust on the death of the First Defendant: Proposed FASOC, [42].

Andrew agrees to give further and better particulars as sought in sub-paragraphs a and b above.

Plaintiff’s submissions

The plaintiff takes the preliminary point that it is unusual for an existing defendant to take objections of this type in relation to a proposed claim solely against a new defendant. The plaintiff submits that objections, if they are to be made, should be made by the joined defendant on a strike out application.

The claim is statute barred

The plaintiff makes three submissions in response to this objection. First, that it is a matter for BRB, if joined, whether or not to take the limitation point. Secondly, that the limitation issue, if it becomes an issue, should be determined at trial, not at a pleading stage. Thirdly, that there is in fact no limitation issue because Andrew’s loss did not crystallise, and so the cause of action against BRB did not accrue, at the earliest until John resiled from the Trust Representations, the Will Representations and the Common Intention, which is pleaded not to have occurred until June 2014 (in proposed paragraph 21A). The plaintiff also foreshadows a contention that as the claim is an alternative claim, the loss does not accrue unless and until the principal claim against the defendants is heard and dismissed.

Pleading of loss and damage

Counsel for the plaintiff contends that the pleading is sufficient. He confirms that the loss claimed against BRB is that set out in the Particulars to proposed paragraph 42, and withdraws that portion of the Plaintiff’s Outline that states that the loss claimed against BRB is the ‘value of expenditure made by Andrew after the time the Trust Representations were made’.[10] The plaintiff submits that the first Particular flows from the fact that the claim against BRB is an alternative claim, and so is necessarily referential to the economic value of what would have been obtained by way of relief against the defendants had the proprietary estoppel claim succeeded. Counsel also observes that the Court may take the view that the loss is an opportunity based loss, arising from the counterfactual of what Andrew would have done had the Trust Representations not been made. Counsel submits, without further elaboration, that the second Particular would apply if not all the Trust Representations are established.
[10]Plaintiff’s Outline, [16].

Wrongs Act

The plaintiff contends that it is not necessary to plead matters relating to s 51(1)(b) if the duty is sufficiently pleaded, just as s 51(1)(a) does not make it necessary to plead more than is required to plead causation.

He submits that s 59 affords a defence, and so is for BRB to plead.

Request for particulars

As noted above, the plaintiff agrees to give further and better particulars in relation to the identified allegations in proposed paragraphs 8(a), 11 and 15 of the PFASOC. The plaintiff contends that the other particulars sought by the current defendants should be sought, if at all, by BRB.

The plaintiff further submits that there is, in any event, no necessity to give particulars of the additional steps that the plaintiff would have taken as alleged in proposed paragraph 42 as this relates to a counterfactual, not what actually occurred.

In relation to the request for particulars of the lost value of becoming appointor, the plaintiff submits that unless this is a request to avoid surprise at trial, it is for evidence at trial.

Consideration
Is it appropriate for the current defendants to take these objections?

The defendants submit that the paragraphs to which they object are liable to strike out, and so it is appropriate for them to take these objections at this stage, to avoid cost and delay.

In my view, it may be appropriate for a current defendant to take objection to a proposed amendment to add another defendant if the joinder will adversely impact the existing defendant, or the proposed amendments to support the joinder are so defective that they are liable to be struck out. In the latter case, if the proposed amendments are so defective that they would be struck out on application by the newly joined defendant, it would obviously be futile, and add unnecessarily to cost and delay, to allow them in the first instance.

As against these factors, taking an objection when not the defendant concerned can cause difficulty should the joined defendant subsequently seek strike out. The joined defendant may wish to advance further or different submissions than previously advanced by the existing defendant, and while not strictly bound by an earlier decision to which it was not a party, could be disadvantaged in practice if the objection appears to have been ruled upon conclusively.

In this case, the defendants do not couch their objections primarily on the basis of prejudice to them, although counsel does observe that some delay will be occasioned by the joinder. Further delay is undeniable, and indeed has been created in part by these objections, but as noted in my Previous Reasons I do not consider that to be a reason to refuse the joinder.[11] Some of my observations in my Previous Reasons related to what were then discrete claims in relation to purported variations to the Trust, now to be removed, but those matters are still relevant to the proprietary estoppel claim, and the bulk of the observations I then made still apply to the PFASOC.
[11]Lamers (no 1), [30]-[37].

For the reasons that I now give, I do not consider that the defendants’ objections should result in the refusal of leave. I do not think any of the proposed amendments to which objection is taken are so defective that they would necessarily be struck out on application by BRB. If such application is made by BRB, that will be the occasion to consider if any should, on balance, be struck out. I also accept the plaintiff’s submission that it is a matter for BRB whether or not take some objections, in particular the contention that the claim is statute barred, and to seek certain further particulars, in particular in relation to causation and loss.

Accordingly, my ruling on the defendants’ objections should not be taken as excluding subsequent similar objection made by BRB, unless I indicate that it is a concluded view on the law.

Statute barred?

I do not consider that the possibility of a limitation defence is reason to refuse leave to join BRB. It is premature to consider that issue in my view for a number of reasons.

First, it is a matter for BRB whether or not to raise the issue of limitation.[12] In the event that it does so in its defence, then further matters can be pleaded by way of reply if required. That may then clarify the issues relating to limitation.
[12]Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471, 488 ; Commonwealth of Australia v Verwayen (1990) 170 CLR 394, 405.

Secondly, the plea in proposed paragraph 21A that John resiled from the Trust Representations, the Will Representations and the Common Intention in June 2014 is new, and not yet responded to by the defendants. Aspects of the particulars which now appear to that proposed paragraph previously appeared as particulars to paragraph 21, to which the defendants did plead in their defence dated 2 November 2015, admitting some aspects of the allegations. Paragraph 21 is not, however, a plea that John has resiled, but rather that he has denied that Andrew has any interest in the Property, the Trust or the shares in Orana Park registered in John’s name. This is conceptually different to resiling from the various representations and the Common Intention. Further details of the allegation made in proposed paragraph 21A also appear in new particulars to that paragraph. The defendants’ response to paragraph 21A (an amendment which is not opposed) is relevant to setting the date, so Andrew contends, that is the earliest from which his cause of action against BRB accrued.

Thirdly, Andrew contends that the cause of action against BRB may not in fact accrue unless and until his claim against the defendants fails, as it is a true alternative claim and he will not suffer any loss unless he is unsuccessful in respect of his primary claim against the defendants. On that analysis (about which I do not express any concluded view), it would be premature to summarily dismiss or exclude the claim against BRB at any stage before trial.

I wish to make it clear that I do not seek to express a concluded view on summary determination of a limitation defence, if sought by BRB once joined. However, for the assistance of the parties, I make the following preliminary observations to the effect that the question as to when Andrew’s loss accrued may be better left to trial, after all the evidence is in.

I discussed this question in my Previous Reasons in relation to another amendment sought at that time, to include the incorrect payment claim.[13] As I there noted, in Wardley Australia Ltd v Western Australia (‘Wardley’)[14] the High Court held that it is undesirable to decide limitation issues in interlocutory proceedings ‘except in the clearest of cases’.[15] At that time, the test for summary dismissal of a claim was that it was ‘hopeless’ or ‘bound to fail’, as opposed to the current, and potentially lower threshold, that the claim has ‘no real prospect of success’. Nevertheless, the Court of Appeal has held in cases subsequent to the changed test for summary dismissal, where the issue is the occurrence of loss in a negligence claim, that the Wardley approach remains applicable.[16]
[13]Lamers (no 1), [25]-[26].
[14](1992) 175 CLR 514.
[15]Ibid 533.
[16]D’Aquino v Trovatello (2015) 47 VR 31; Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17.

The defendants rely on the statement in Jobbins v Capel Court Corporation Limited and anor (‘Jobbins’)[17] that a court should not ‘defer the inevitable’ by refusing to strike out a claim at an interlocutory stage on limitation grounds if it is clear that the expiration of the limitation period will be a complete answer.[18] I accept that in a clear case a court may summarily determine a limitation issue, whether by way of strike out, refusal of leave to amend or summary judgment. This is illustrated by Bodycorp Repairers Pty Ltd v Holding Redlich (‘Bodycorp’)[19] in which the Court of Appeal reiterated that Wardley is the ‘seminal Australian authority’[20] yet after detailed consideration of that case and other relevant authorities, nevertheless dismissed an appeal from the summary dismissal of a negligence proceeding on the basis that it was statute barred.
[17](1989) 25 FCR 226.
[18]Ibid, 231.
[19][2018] VSCA 17.
[20]Ibid [134].

Bodycorp was a case where the aggrieved plaintiff and appellant sought to sue its former solicitors only after being unsuccessful in its suit against the primary alleged wrongdoer. On the appeal, the appellant argued that it did not suffer loss and damage until it failed in the proceeding against that primary alleged wrongdoer.[21] As noted earlier, Andrew has foreshadowed that he may put a similar argument in this case. That contention was held to be incorrect in Bodycorp on the facts of that case. The Court did accept, however, that the appellant had an arguable case that the trial judge had erred, and so granted leave to appeal, and only dismissed the appeal after detailed consideration of the economic interest infringed by the alleged negligence, and when loss first occurred. It is, in my view, an illustration that detailed analysis may be necessary to establish a limitation defence, and that minds may reasonably differ on that question.
[21]Bodycorp (n 18), [190].

Pleading of loss and damage

Causation and loss are pleaded together in proposed paragraph 42 of the PFASOC. The plaintiff has clarified that the loss he claims is not (as his Outline suggested) the amount of his expenditure in reliance on the Trust Representations, but the loss claimed in the Particulars to paragraph 42. There are two heads of damage claimed - the loss of the economic value of Andrew’s claim against John, or in the alternative the loss to Andrew of not becoming the appointor of the Trust on John’s death.

The first of these is further conditioned by internal reference to proposed paragraph 24(c). That sub-paragraph contemplates that there are a number of factors which the Court may find relevant to the equitable relief which Andrew seeks in his proprietary estoppel claim. Those factors are identified as having value, but their actual value is not specified - as the sub-paragraph identifies that will be a matter for evidence, including expert evidence.

Subject to any further argument to be put by BRB on a strike out or other application, I do not consider the pleading of this first head of damage to be inadequate. On the contrary, it seems to me to succinctly illustrate the intention that the claim against BRB is an alternative claim, if the principal claim fails, because it identifies the first head of loss as being the economic value of that principal claim. Matters that may affect the economic value of that principal claim are pleaded in the principal claim, including various lost opportunities identified in the particulars to paragraph 15, and the matters identified in sub-paragraph 24(c). Counsel for Andrew confirms that there are no additional or other lost opportunities sought to be relied upon as against BRB. The actual dollar value of the principal claim will be a matter for evidence and submission.

I observe that this first head of damage describes that principal claim as being against John, not against both defendants, which contrasts with the relief sought on the principal claim. This is not a matter to which either party adverted in argument. If the intention of proposed paragraph 42 was to advert to the economic value of Andrew’s claim against both defendants, I would grant leave for that further amendment.

Objection is taken to the second and alternative head of loss on the basis that being the appointor has no value. Subject to any further argument to be put by BRB on a strike out or other application, I do not consider the pleading of material facts to be insufficient. The lost opportunity, that of being the appointor of the Trust, is pleaded. The objection is on the basis that that opportunity had no value. It will be a matter of evidence and submission whether being the appointor had any value. As I indicate below, however, I do think that further particulars would avoid surprise and provide the necessary parameters for that evidence.

Wrongs Act

Sections 51 and 59 of the Wrongs Act are as follows:

51 General principles
(1)A determination that negligence caused particular harm comprises the following elements—

(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

59 Standard of care for professionals
(1)A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
(2)However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.
(3)The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Peer professional opinion does not have to be universally accepted to be considered widely accepted.
(5)If, under this section, a court determines peer professional opinion to be unreasonable, it must specify in writing the reasons for that determination.

(6) Subsection (5) does not apply if a jury determines the matter.

I considered scope of liability in an earlier decision.[22] What follows is largely drawn from that decision.
[22]Kambouris v Tahmazis (No 2) [2015] VSC 174.

The Court of Appeal noted in Powney v Kerang and District Health (‘Powney’) that at common law, the March v Stramare test effectively dealt with scope of liability and factual causation as one: part of the ‘common sense’ approach to causation.[23] The Court of Appeal held in that case that the Wrongs Act now separates out scope of liability into a distinct concept, on which the plaintiff must succeed in addition to success on factual causation. The Court observed that the application of s 51(1)(b) requires that the Court ‘makes a value judgment based on precedent and policy considerations, which may limit the liability of a person found to be responsible under the factual causation test’.[24]
[23][2014] VSCA 221 at [76].
[24]Ibid, [79].

Reference to ‘precedent’ may initially be puzzling, given that in Wallace v Kam, the High Court had held that the determination of the question posed by s 51(1)(b) is ‘entirely normative’.[25] The Court in Wallace v Kam went on, however, to explain that where the case in question falls within an ‘established class’ the normative question posed by s 51(1)(b) is ‘properly answered by a court through the application of precedent’.[26]
[25]Wallace v Kam (2013) 250 CLR 375, [14].
[26]Ibid, [22].

In a ‘novel case’, the Court held in Wallace v Kam in respect of the identical provisions to s 51(4) and s 51(1)(b) in New South Wales:

s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to ‘the purposes and policy of the relevant part of the law’. Language of “directness”, “reality”, “effectiveness” or “proximity” will rarely be adequate to that task. Resort to “common sense” will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained.[27]

[27]Ibid, [23].

In my view, the fact that s 51(1)(b) requires a normative or value judgment means that it does not of itself require the pleading of any additional matters. It may be considered on the basis of the facts pleaded and proved in relation to the standard elements of a negligence claim. The only aspect of those elements claimed by the defendants to be deficiently pleaded is the pleading of loss, which I have dealt with above. I do not consider this objection to be an obstacle to the grant of leave, but reserve my final view as to whether further matters should be pleaded in case BRB once joined seeks strike out or makes other application after filing of their defence.

The defendants accepted in oral argument that s 59 relates to a possible defence, as do I. Accordingly my view in this application is that it will be for BRB to plead and establish the facts that may give rise to it. As this is a matter of statutory interpretation, I do not envisage that I could be persuaded otherwise by BRB, but for the sake of caution express this view subject to any application made by BRB.

Request for further particulars

The requests for further particulars not accepted by the plaintiff relate to:

· The allegation in proposed paragraph 36 that John Barlow’s statements are to be treated as representations by BRB;

· The steps the plaintiff would have taken if properly advised - proposed paragraphs 42 and 46; and

· The loss of the value of the plaintiff becoming the appointor of the Trust on the death of John- proposed paragraph 42.

In relation to the first of these, I have not identified that the PFASOC explicitly pleads that John Barlow was at the relevant time a partner of BRB or otherwise an agent of that firm. Nor has my attention been drawn to any such pleaded fact. On the basis of my previous knowledge of this case, I had not thought it to be controversial. If indeed, as the current defendants indicate, the allegation in proposed paragraph 36 will be controversial then, for the avoidance of doubt, it would be preferable for the further amended statement of claim to include particulars of the allegation.

My preliminary view is that the plaintiff should give further particulars of the additional steps he would have taken if properly advised, and of the value of being the appointor of the Trust. The plaintiff will be required to give evidence in relation to these matters at trial, and that evidence will be at large and potentially of surprise to BRB unless constrained and identified by particulars. My current intention is to allow for such particulars to be added to the further amended statement of claim in the orders I make to implement these reasons.

However, I will make no order for particulars at this stage. It may be that the plaintiff will adopt my observations, and include further particulars in the further amended statement of claim as filed. Even if the plaintiff does not take that course, I consider that a request for further particulars of all of these allegations is more properly made by BRB once joined, and in the first instance by correspondence as is usual. If the defendants seek to further record the plaintiff’s agreement in respect of the other particulars requested, that can be done in Other Matters in the orders to implement these reasons, or recorded in correspondence.

Conclusion and orders

I will grant leave to file a further amended statement of claim, substantially in the form of the PFASOC (i.e. Exhibit A) as further amended in the course of argument. The plaintiff may also take this opportunity to correct some of the infelicitous numbering and lettering, or other cumbersome drafting, in the original statement of claim, and to insert particulars to paragraphs 36, 42 and 46 as discussed above. I will permit the further amended statement of claim to be filed in clean form, particularly if the numbering is to be changed.

If the plaintiff proposes to make these further changes and/or file the further amended statement of claim in clean form, he should alert the defendants prior to filing the document, so that they may check the changes.

I ask the parties to prepare orders, agreed if possible, to give effect to these reasons, to provide appropriate orders for costs, and to set a timetable for the filing and service of the further amended statement of claim and a date for further directions after time has expired for the entry of appearance and defence.

If the parties are unable to agree I will hear them further.

Actions

Download as PDF Download as Word Document

Citations

Lamers v Lamers (No 4) [2019] VSC 510

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

0

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

Commonwealth v Mewett [1997] HCA 29

Pipikos v Trayans [2018] HCA 39

[2019] VSC 510

1 August 2019