Malcolm Walter Atwell and Ian George Atwell as Trustee of the Estate of Walter Charles Atwell on behalf of all other Partners in the Atwell Family Agency other than the first defendants v Roberts
[2005] WASC 70
MALCOLM WALTER ATWELL and IAN GEORGE ATWELL as Trustee of the Estate of WALTER CHARLES ATWELL on behalf of all other Partners in the ATWELL FAMILY AGENCY other than the first defendants -v- ROBERTS & ORS [2005] WASC 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 70 | |
| Case No: | CIV:1832/2004 | 3 FEBRUARY 2005 | |
| Coram: | MASTER SANDERSON | 5/05/05 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Defence struck out in part | ||
| B | |||
| PDF Version |
| Parties: | MALCOLM WALTER ATWELL and IAN GEORGE ATWELL as Trustee of the Estate of WALTER CHARLES ATWELL on behalf of all other Partners in the ATWELL FAMILY AGENCY other than the first defendants LEIGH ROBERTS NOEL HENRY ATWELL AUDREY ATWELL LEIGH ROBERTS as Trustee for the Estate of KEITH GILBERT ROBERTS LEIGH ROBERTS as the Trustee for the Estate of HILDA DORCUS ROBERTS LEIGH ROBERTS as the Trustee of the Estate of ADA ETHEL ATWELL LEIGH ROBERTS as Trustee for the Hamersley Trust JOHN CHARLES STACY as Trustee of the Estate of EDNA PHOEBE PATERSON EVELYN DIANE BROADLEY as Trustee of the Estate of GLADYS JANET ADDISON BROADLEY MAURICE EUGENE FRICHOT as Trustee of the Estate of DOROTHY MAY BECKETT GARY JOHN ATWELL |
Catchwords: | Practice and procedure Application to strike out defence Turns on own facts |
Legislation: | Nil |
Case References: | Ballas v Theophilos (1957) 98 CLR 193 Cashman v 7 North Golden Gate Gold Mining Co (1897) 7 QLJ 152 Cohen v Cohen (1929) 42 CLR 91 Foran v White (1989) 168 CLR 385 Gambotto v WCP Ltd (1995) 182 CLR 432 Legione v Hateley (1983) 152 CLR 406 Orr v Ford & Anor (1989) 167 CLR 316 Public Trustee v Schultz & Ors (1973) 1 NSWLR 564 Young v The Owners of S/P 3529 (2001) 54 NSWLR 60 Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Craine v Colonial Mutual Fine Insurance Co Ltd (1920) 28 CLR 305 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Glass v Fuller [1922] SASR 148 Jeans West Corporation v Archer [2004] WASCA 132 R v McNeil (1922) 31 CLR 76 Southern Resources Ltd v Technomin Australia NL [1990] WAR 72 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Westgold Resources NL v St George Bank Ltd & Ors (1998) 29 ACSR 396 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
LEIGH ROBERTS
NOEL HENRY ATWELL
AUDREY ATWELL
First Defendants
LEIGH ROBERTS as Trustee for the Estate of KEITH GILBERT ROBERTS
LEIGH ROBERTS as the Trustee for the Estate of HILDA DORCUS ROBERTS
LEIGH ROBERTS as the Trustee of the Estate of ADA ETHEL ATWELL
LEIGH ROBERTS as Trustee for the Hamersley Trust
JOHN CHARLES STACY as Trustee of the Estate of EDNA PHOEBE PATERSON
(Page 2)
- EVELYN DIANE BROADLEY as Trustee of the Estate of GLADYS JANET ADDISON BROADLEY
MAURICE EUGENE FRICHOT as Trustee of the Estate of DOROTHY MAY BECKETT
GARY JOHN ATWELL
Second Defendants
Catchwords:
Practice and procedure - Application to strike out defence - Turns on own facts
Legislation:
Nil
Result:
Defence struck out in part
Category: B
Representation:
Counsel:
Plaintiffs : Mr D H Solomon
First Defendants : Mr S K Shepherd
Second Defendants : Mr S K Shepherd
Solicitors:
Plaintiffs : Solomon Brothers
First Defendants : Bennett & Co
Second Defendants : Bennett & Co
(Page 3)
Case(s) referred to in judgment(s):
Ballas v Theophilos (1957) 98 CLR 193
Cashman v 7 North Golden Gate Gold Mining Co (1897) 7 QLJ 152
Cohen v Cohen (1929) 42 CLR 91
Foran v White (1989) 168 CLR 385
Gambotto v WCP Ltd (1995) 182 CLR 432
Legione v Hateley (1983) 152 CLR 406
Orr v Ford & Anor (1989) 167 CLR 316
Public Trustee v Schultz & Ors (1973) 1 NSWLR 564
Young v The Owners of S/P 3529 (2001) 54 NSWLR 60
Case(s) also cited:
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Craine v Colonial Mutual Fine Insurance Co Ltd (1920) 28 CLR 305
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Glass v Fuller [1922] SASR 148
Jeans West Corporation v Archer [2004] WASCA 132
R v McNeil (1922) 31 CLR 76
Southern Resources Ltd v Technomin Australia NL [1990] WAR 72
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Westgold Resources NL v St George Bank Ltd & Ors (1998) 29 ACSR 396
(Page 4)
1 MASTER SANDERSON: This is the plaintiffs' application to strike out certain paragraphs of the defendant's defence. The application to the case management registrar referred to 22 paragraphs of the defence. Fortunately it is possible to break these paragraphs down in to a limited number of categories. However, before detailing the plaintiffs' complaints about the defence it is necessary to go into some detail as to the nature of the plaintiffs' claim.
2 The first 11 paragraphs of the statement of claim appear under a subheading "The Partnership". By par 1 it is pleaded that the plaintiffs and the first defendants are partners in a firm named the Atwell Family Agency. The Atwell Family Agency is defined in the statement of claim as the "Partnership". By par 4 of the statement of claim it is pleaded that the Partnership was established by a deed of partnership made 16 December 1964 and varied by a deed dated 15 October 1965 and a further deed dated 25 March 1976. This latter deed is defined in the statement of claim as "1976 Deed". It is pleaded that the Rules of the Partnership (defined in the pleading as "the Rules") are contained in the schedule to the 1976 Deed. It is further pleaded that the late Walter Charles Atwell was a party to the deed dated 16 December 1964 and that Malcolm Walter Atwell and Ian George Atwell (the plaintiffs) are partners in their capacity as trustees of the estate of the late Walter Charles Atwell.
3 It is common ground that the Partnership carries on and has at all material times carried on a business of owning and leasing retail property known as the Atwell Arcade. This arcade is a well-known shopping precinct located between High and Cantonment Streets, Fremantle.
4 It is pleaded that the partners comprising the Partnership (collectively defined in the pleading as "the Partners") have varied from time to time due to the transfer of units in the partnership or the death of certain partners. The pleading defines each successive firm arising on each variation as being within the expression "the Partnership" and defines the term "Partner" to include a partner in any of the successive firms.
5 By par 6 of the pleading it is said that the Rules are binding on all Partners pursuant to cl 1 of the 1976 Deed. The binding effect of the Rules is said to operate on every person who becomes a Partner by being a person in whose name units in the Partnership are entered in accordance with the Rules and who sign their name at the foot of the Rules as a person bound by the Rules. It is further pleaded that Rule 3 provided that
(Page 5)
- on 1 July 1975 six individuals, among others, held units and were Partners. Each of those six individuals is now deceased. These individuals are defined in the pleading as "the Relevant Parties". It is said each of these Relevant Parties executed the 1976 Deed. Paragraph 8 pleads that four individuals are now the legal personal representatives and trustees of the estates of the Relevant Parties (one of the named legal representatives being the personal representative and trustee of three of the deceased).
6 Consequent of all of these matters, it is said that the Relevant Parties entered into an express written contract with all of the other parties to the 1976 Deed, and persons subsequently becoming Partners, the terms of which were contained in the 1976 Deed.
7 By par 10 it is pleaded that two further individuals (among others) were admitted to the Partnership after the making of the 1976 Deed. It is said that by reason of the pleaded matters those two individuals entered into an express written contract with all other members of the Partnership to be bound by the Rules.
8 It is worth pausing at this point to say that while the pleaded partnership arrangement is complex, the pleading itself is neither embarrassing nor incomprehensible. Essentially what is said is that over the years the personnel in the Partnership has changed and who has replaced whom is explained. In fairness to the defendants I should say that virtually all of what is pleaded by the plaintiffs is denied or not admitted by the defendants. The defendants have also declined to adopt the definition of terms found in the statement of claim. While that is their right, it is perhaps unfortunate they have chosen to take that course.
9 Paragraphs 12 through to 25 of the statement of claim appear under the subheading "Disposals of Units in the Partnership". By par 12 it is pleaded that the acquisition and disposal of units in the Partnership is governed by rr 4 to 11. It is said that in some circumstances a Partner may acquire units from another Partner at a mutually agreed price without giving what is defined as a "Disposal Notice". Such an acquisition is permitted in three different sets of circumstances. First, units in the name of a deceased Partner may be entered in the names of his or her legal personal representative upon those representatives signing at the foot of the Rules as persons bound by the Rules. Second, units in the name of the legal personal representatives or trustees of the estate of any deceased Partner may be entered in the names of new trustees for the time being upon the legal personal representatives or new trustees signing their
(Page 6)
- names at the foot of the Rules. Thirdly, a Partner may transfer the units to their spouse, brother, sister or child and if there are no children surviving, then to a grandchild of the Partner. All of these matters are covered by Rule 5.
10 If a Partner proposes to dispose of all or any of his units other than in accordance with Rule 5, then he or she must give a Disposal Notice to the committee of management appointed under r 21 of the Rules. The notice is to be in writing stating that the Partner is proposing to dispose of all or any of the units and the notice must nominate a price. The notice then constitutes the committee as agent of the Partner to sell the units the subject of the Disposal Notice to other Partners at a fixed price. The committee must inform all existing Partners of the number of units available and their price. The existing Partners are given an option to purchase the units at the price fixed in the Disposal Notice in proportion to their unit entitlements or at a price determined by valuation. The units are not to be transferred if the effect of the transfer would be to increase the number of partners beyond 20.
11 It is pleaded that in 1983 Ada Ethel Atwell ("Ms Atwell") owned approximately 23,220 units and was a Partner bound by the Rules. It is pleaded that by Will dated 17 July 1975 Ms Atwell gave all her units to the Hamersley Trust, an inter vivos trust established in 1972 of which Keith Gilbert Roberts ("Mr Roberts") was trustee. Ms Atwell died on 24 March 1983 and, it is said, the units held by her estate were transferred to Mr Roberts in his capacity as trustee. It is said that no Disposal Notice was given nor were other requirements in the Rules complied with prior to the transfer, this being so despite the fact that Mr Roberts was not a Partner on 24 March 1983 or the date of transfer.
12 Paragraphs 15 through to 20 plead a further three transfers of units and it is said in each case there was no Disposal Notice given nor was there compliance with the Rules. Paragraph 21 pleads a proper disposal. Paragraphs 22 and 23 and 24 plead further disposals which are said not to be in accordance with the Rules. Paragraph 25 draws all of these pleas together. It is said that in each case the transfers pleaded were not made in accordance with the Rules and were in breach of the agreement constituting the Partnership. Particulars of the breaches are provided in subpars A through to H.
13 Paragraphs 26 to 36 of the statement of claim appear under the subheading "Payments to Management Committee and others". By par 26 it is pleaded that the Rules with respect to the management of the
(Page 7)
- Partnership allowed the Partners to appoint a manager. This was to be done by resolution at a general meeting. For any period where no manager was appointed the function of the manager was to be undertaken by the committee of management. The pleading defines the committee of management as the "Committee". The Committee was to be elected by Partners in a general meeting and was to meet at least four times a year. It had the power to give general directions to a manager. The manager was to have control of and manage the business of the Partnership and was empowered to employ such persons for that purpose and pay them such amount as from time to time the manager thought fit. The manager was to be renumerated at such a rate as the Committee from time to time decided. If there was no manager, then the Committee would have all the powers conferred on the manager. The manager and every member of the Committee was to be indemnified out of the funds of the Partnership against all costs, losses and expenses which were incurred or for which they may become liable by reason of any contract entered into or act or thing done by the manager or a member of the Committee in discharging his or her duties unless the costs and expense was attributable to the individual's wilful default or dishonesty.
14 By par 27 it is pleaded that five named individuals were from time to time members of the Committee. By par 28 it is pleaded that the Partners at the annual general meeting of the Partnership have since 22 October 1976 resolved to pay an honorarium to the Committee. By par 29 it is pleaded that the remunerations of the manager which was recorded as "Management and Administration expenses in the Partnership accounts" has usually been based on a percentage of the total receipts collected. It is said that the actual percentage has been changed at general meetings of the Partners and on occasions "purportedly" by the Committee. Paragraph 30 named two individuals and one firm who have from time to time been engaged as manager pursuant to the Rules. By par 31 it is pleaded that the appointed managers have conducted the day-to-day business of the Partnership.
15 By par 32 it is pleaded that the manager appointed from time to time has been renumerated but in amounts less than the total management and administration expenses recorded in the Partnership accounts. It is said that the remainder of the amount so recorded has been paid to the Committee without disclosure to the other Partners "and in a manner unascertainable by the other Partners because the Committee continued to receive an honorarium (in an amount much less than the undisclosed additional payments)". Paragraphs 33 through to 36 then plead that such payments were wrongful either because they were not made in
(Page 8)
- compliance with the Rules, they were a breach of fiduciary duty or for various other reasons. As might be expected, the relief sought by the plaintiffs is somewhat complex and it is not presently relevant. It is sufficient if I say that as a consequence of the matters pleaded the plaintiffs seek to unwind the affairs of the Partnership.
16 The amended defence is a very detailed document. It runs to 41 pages and 96 paragraphs. Fortunately it is not necessary for me to go through the defence in detail and set it against the statement of claim. In broad terms it denies the plaintiffs' claims and rejects any suggestion that the affairs of the Partnership should be unravelled.
17 Turning then to the plaintiffs' specific complaints, pars 23, 31, 38, 44, 51 and 60 all plead denials that the plaintiffs were Partners in the Partnership at times pleaded in these paragraphs. For instance, par 23 is in following form:
"The defendants deny that the plaintiffs were partners in the partnership carrying on business as the Atwell Family Agency as at 23 March 1983."
18 That paragraph stands alone in the defence in the sense that it is not directed specifically at any paragraph in the statement of claim. Paragraphs 1 through to 22 of the defence deal with pars 1 through to 12. It is to be remembered that the first 11 paragraphs of the statement of claim are pleaded under the subheading "The Partnership". Paragraph 12 then pleads the effect of a number of the Rules. Apart then from any other criticism of the paragraph, its position in the amended defence makes no logical sense. It would be more comprehensible if it appeared as par 22 with the present par 22, which deals with par 12 of the statement of claim, appearing as par 23. I accept that this criticism is only as to form and is not a point of great significance. But in a case where the fact situation is difficult and the pleadings necessarily complex, having a logical structure to the pleadings is in the interests of everyone.
19 The plaintiffs' complaint is not as to the position of this or the other paragraphs complained of in the pleading. Rather they say that the plea has no relevance with respect to the plaintiffs' cause of action. They say that these are representative proceedings. The first-named and the second-named plaintiffs have brought the action on behalf of all other Partners in the Partnership other than the first defendants. Consequently, relief is claimed on behalf of all Partners other than the first defendants including all persons other than the first defendants who were Partners at
(Page 9)
- the times pleaded in the statement of claim. Further, it is said that the first and second-named plaintiffs are Partners in their capacity as trustees of the estate of Walter Charles Atwell. Either Walter Charles Atwell, Elsie Atwell, the former trustees of the estate of Walter Charles Atwell or the first and second-named plaintiffs, the current trustees of the estate of Walter Charles Atwell have been Partners at all material times. Therefore the plea in par 23 is unsustainable.
20 The defendants say that the issue of whether the defendants were Partners at the appropriate time is live because it is the very basis upon which the plaintiffs have mounted their case. Further, the defendants say that the plaintiffs are attempting to assert rights which under a partnership agreement are rights in personam - that is to say, rights that can only be exercised by the Partner personally. On that basis it is said that the executor of an estate cannot exercise the rights which would have been open to the Partner to exercise. With respect to counsel for the defendants, after reading the written submissions and hearing the oral submissions I was not entirely clear what aspect of the plaintiffs' claim was being attacked by the defence. If it is suggested that at a particular moment in time the plaintiffs were not Partners, that might be correct. But it is clear from the pleading and from the various deeds that the present plaintiffs are the representatives of the named individuals. In my view that is unarguable. Accordingly, the paragraphs complained of should be struck out.
21 Paragraphs 28, 35, 41, 58 and 64 of the defence all plead that the Partners waived the requirements of the Partnership contained in the schedule to the 1976 Deed. In particular Rules 4 to 11 are said to have been waived. The particulars of the waiver all relate to matters undertaken by the Committee or the Partnership in general meeting. The plaintiffs say that a right of the Partner to receive an option to purchase the interest of another Partner is a personal proprietary right of the Partner and not Partnership property. Reliance is placed on Ballas v Theophilos (1957) 98 CLR 193 per Williams J at 209 and Public Trustee v Schultz & Ors (1973) 1 NSWLR 564 per Hailsham J at 577. The plaintiffs further say that the extinguishment of a valuable proprietary right of a Partner attaching to ownership of units by an individual Partner such as the Partners' right pursuant to rr 6 and 7 to receive a Disposal Notice and to purchase the units described in that notice cannot be affected by the Committee or the Partnership in general meeting without an express provision in the Rules relating to such extinguishment. Further reference is made to Gambotto v WCP Ltd (1995) 182 CLR 432 per Mason CJ,
(Page 10)
- Brennan, Deane JJ at 445 and Young v The Owners of S/P 3529 (2001) 54 NSWLR 60 at 74, 75.
22 On behalf of the defendants it is said that the defence pleads that the transfers of units complained of in the statement of claim were disclosed to all Partners by express notice or in a statement of Partners' interests prepared each year and sent to all Partners with the annual accounts and approved by the Partnership in general meeting. The defence, it is said, further pleads that regardless of the position of the other Partners, Elsie Atwell was personally aware of the transfers. The Partners (including Elsie Atwell) formally approved the transfers or having been made aware of them made no objection. The defendants say in the absence of any objection or purported exercise of rights under the relevant partnership agreement the requirements of the Rules have been waived. This they say is a sufficient plea of waiver.
23 Textbook writers are generally divided as to whether or not there is a doctrine of "waiver" as distinct from estoppel: see, for example, Equity: Doctrines and Remedies, Meagher Heydon Leeming, 4th ed, par 17-140. On that basis it may be doubted whether the plea of waiver has any meaning at all. However, given that it raises facts which are virtually identical to that raised in relation to defence of estoppel and acquiescence (both pleas which I will deal with below) I would be prepared to allow this aspect of the defence to stand. In other words, I would not strike out the paragraphs of the defence complained of.
24 Paragraphs 29, 36, 42, 49, 59 and 65 plead estoppel. The plaintiffs say that the estoppel pleas are deficient for three reasons. First it is said that no material facts are pleaded which show the plaintiffs made clear and unequivocal representations to the defendants to the effect that the giving of a Disposal Notice was not necessary in relation to any of the pleaded transfers of units. Without pleading such facts the defendants cannot lead evidence at trial, it was submitted, sufficient to establish a defence of estoppel by representation. Reference was made to Legione v Hateley (1983) 152 CLR 406 per Mason and Deane JJ at 435 - 437 and Foran v White (1989) 168 CLR 385 per Mason CJ at 410 - 411. Insofar as this criticism of the pleading relates to matters appearing under "Particulars of conduct raising estoppel" the complaint is, I think, well founded on two grounds. First, there must be a plea of material facts which are said to give rise to the representation. It is not appropriate to purport to give particulars of conduct raising estoppel. An estoppel arises from representations and the facts giving rise to those representations are material facts. Secondly, and of more importance, if pars 29(a) through to
(Page 11)
- 29(d) are assumed to be material facts, the problem is not cured. It is not clear how any of those paragraphs could amount to a representation. The plea therefore cannot stand.
25 The plaintiffs' second complaint assumes that the pleaded estoppel is based on an agreement or assumption that the giving of a disposal notice was not necessary in relation to any of the pleaded transfers of the units. Once again there are no material facts pleaded which could give rise to such a defence. Thirdly, the plaintiffs say that if the pleaded estoppel is to the effect that the plaintiffs induced the defendants to assume or believe that a relationship existed or would exist between them where giving of a Disposal Notice was not necessary in relation to any of the pleaded transfers, there is again no plea of material fact. Once again the criticism is properly founded.
26 It may well be in the circumstances of this case that it is open to the defendants to raise a defence based on estoppel. But the plea in its present form does not clearly articulate the material facts relied upon to raise the estoppel. While I would not allow the present plea to stand, the defendants should have leave to replead.
27 Paragraphs 71 and 92 of the defence both plead Elsie Atwell, a Partner in her capacity as trustee of the estate of Walter Charles Atwell, acquiesced in breaches of the Rules as pleaded in those paragraphs. The plaintiffs say that the pleas are deficient. They say no material facts are pleaded which show that Elsie Atwell was aware of the relevant acts and omissions that constituted the breaches of the Rules contemporaneously with the occurrence of those breaches nor are material facts pleaded which show that Elsie Atwell stood by and did not attempt to interfere with, or complain about, those acts or omissions. Reliance is placed on a number of decisions including Cashman v 7 North Golden Gate Gold Mining Co (1897) 7 QLJ 152 per Griffiths CJ at 153 - 154 and Orr v Ford & Anor (1989) 167 CLR 316 per Deane J at 337 - 338.
28 In Orr v Ford Deane J discusses at some length precisely what is meant by "acquiescence". His Honour points out that the term has a number of meanings or applications. Relevantly for this case his Honour said:
"… acquiescence is used, in a context where laches is used to indicate either mere delay or delay with knowledge, to refer to conduct by a person, with knowledge of the acts of another person, which encourages that other person reasonably to
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- believe that his acts are accepted (if past) or not opposed (if contemporaneous)."
29 So the two elements then of acquiescence are that the parties said to have acquiesced must have knowledge of the acts of another person and, secondly, must encourage that other person to reasonably believe that the acts will not be opposed. On balance, I am satisfied that both of these requirements of a plea of acquiescence are found in pars 71 and 92. As I understand the plaintiffs' criticism of the plea, it is really a temporal one - it is said that there is no plea that Elsie Atwell knew of the breach of the Rules at the time that the acquiescence is said to have occurred. In my view the defendants' position is sufficiently clear from the paragraph to enable the plaintiffs to know the case they have to meet.
30 Finally it is said that the plea of the limitation defence found in pars 75 and 95 are inadequate. The defendants purport to rely on the Limitation Act 1935 (WA). But the claims brought by the plaintiffs are all equitable in nature. To overcome this potential difficulty the defendants say that the Limitation Act applies "by analogy". The defendants say further that it is not necessary for them to identify the particular section of the Limitation Act which applies by analogy.
31 In my view it is appropriate that the section be identified. The provisions of a statute of limitations will only be applied by analogy in equity where a party seeks an equitable remedy which is available in addition to a remedy available at common law for the breach of a legal right and that legal right, or common law remedy, is barred by statutory provision. The principles of this area of the law are discussed in some detail in Haydon - Equity: Doctrines and Remedies, 4th ed, pars 34-070 and 34-075. In that context the learned authors refer to Cohen v Cohen (1929) 42 CLR 91 and the judgment of Dixon J.
32 In my view it is appropriate if some section of the Limitation Act is said to apply by analogy, that such a section be identified. That is no more than allowing the plaintiffs to understand the case they have to meet. To that extent the plea of the limitation defence is inadequate and I would strike it out.
33 Accordingly then I would strike out pars 23, 31, 38, 44, 51, 60 in relation to the denials that the plaintiffs were Partners; I would strike out pars 29, 36, 42, 49, 59 and 65 of the estoppel defence; and I would strike out pars 75 and 95 of the Limitation Act defence. In the latter two instances there is no doubt there should be leave to replead. The plaintiffs
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- did not suggest otherwise. It is a question then of whether there should be leave to replead in relation to the plea in relation to the partnership.
34 Not without some hesitation I have determined that the defendants should have general leave to replead. It may be that they can in some way raise issues as to the right of the present plaintiffs to bring this action based upon limitations flowing from the fact of the various partnerships from time to time. Quite how that might be done is not at present clear but in my view it is a possibility. For that reason I would give the defendants general leave to replead. I will hear the parties as to the precise form of orders and as to costs.
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