Melvin v AG Melvin, MJ Melvin & RN Melvin (A Firm) - [2023] WASC 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MELVIN -v- AG MELVIN, MJ MELVIN & RN MELVIN (A FIRM) [2023] WASC 372
CORAM:   STRK J
HEARD:   3 AUGUST 2021 & UPON SUBMISSIONS SUBSEQUENTLY FILED
DELIVERED          :   29 SEPTEMBER 2023
FILE NO/S:   CIV 1235 of 2021
BETWEEN:   ASHLEY GORDON MELVIN
Plaintiff
AND
AG MELVIN, MJ MELVIN & RN MELVIN (A FIRM)
First Defendant
AG MELVIN AND RN MELVIN (A FIRM)
Second Defendant
JODIE MAREE MELVIN as executrix of the estate of ROBIN NOEL MELVIN
Third Defendant
MARLENE JANICE MELVIN by guardian ad litem THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA
Fourth Defendant

Catchwords:

Practice and procedure - Whether the plaintiff has pleaded causes of action not recognised at law - Common law action of debt - Nature of a partner's interest - Prayer for relief includes claim for damages and compensation in addition to the taking of accounts - Whether the plaintiff has pleaded claims that are statute barred - Reasonable cause of action - Potential to confuse - Ambiguity that may prejudice a fair trial

Legislation:

Limitation Act 2005 (WA)
Partnership Act 1895 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application granted in part

Category: B

Representation:

Counsel:

Plaintiff	:	E Hemsley
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	MN Blandford
Fourth Defendant	:	M Woodford

Solicitors:

Plaintiff	:	Lane Buck & Higgins Narrogin
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Granich Partners
Fourth Defendant	:	Public Trustee

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

Atwell & Atwell v Roberts [No 3] [2009] WASC 96
Atwell v Roberts [2013] WASCA 37; (2013) 43 WAR 507
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Bride v Peat Marwick Mitchell [1989] WAR 383
Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 4] [2020] WASC 382
Cameron v Murdoch (1986) 63 ALR 575
Commissioner of State Taxation v Cyril Henschke Pty Ltd [2010] HCA 43; (2010) 242 CLR 508
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632; [1949] 1 All ER 219
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Fazio v Fazio [2012] WASCA 72
Federal Commissioner of Taxation v Everett (1980) 28 ALR 179
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Gordon v Scott (1958) 12 Moo PCC 1; 14 ER 812
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Hewitt v Henderson [2006] WASCA 233
In the matter of Pinata Pty Ltd (in liq); Killen v Hamilton [2012] NSWSC 162
McJannett v Gibbs [2012] WASC 369
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26
Noyes v Crawley (1878) 10 Ch D 31
Nyoni v Patterson [2012] WASCA 171
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
R v Hurt (1954) 1 WLR 1309
Ryder v Frohlich [2004] NSWCA 472
Smith v Smith [1926] NZLR 311
Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179
Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478
United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 144 CLR 673
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Waterer v Waterer (1873) LR 15 Eq 402
Woods & White v Hopkins [2016] WASC 16

STRK J:

Introduction

This proceeding concerns two farming partnerships, their dissolution, and the claims made by the plaintiff as a former partner.
The third defendant complains that aspects of the plaintiff's pleaded case suffer from serious deficiencies which fall within two categories. First, she complains that the plaintiff pleads causes of action which are not recognised as a matter of law; and secondly, she complains that the plaintiff pleads claims which are statute barred. In this context, the third defendant applies to strike out parts of the plaintiff's amended statement of claim pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 19(1)(a) and (c). The application is opposed by the plaintiff. For the reasons set out below, parts of the amended pleading will be struck out as they may prejudice, embarrass or delay the fair trial of the action, with leave to replead.

The plaintiff's pleaded case and the impugned pleadings

The parties to the proceeding share the same surname. For convenience and clarity, I refer to the parties by their first names. No disrespect is intended.
I set out below an overview of Ashley's pleaded case and identify in context the pleadings that are the subject of the application.
Ashley pleads that at all material times he has been a member of two partnerships. He named the partnerships, AG Melvin, MJ Melvin & RN Melvin (a firm) and AG Melvin and RN Melvin (a firm), as the first and second defendants to this proceeding. The partnerships are described by Ashley in his pleading as the Primary Partnership and the Secondary Partnership. Ashley pleads that they are and at all material times were partnerships carrying on a farming business with a view of profit. Ashley does not plead that there were written partnership agreements.
Ashley pleads that at all material times he was a member of the Primary Partnership; that at all material times prior to Robin's death on 5 April 2020, Robin was a member of the Primary Partnership; and that Marlene is and at all material times was a member of the Primary Partnership.
As to the Secondary Partnership, Ashley pleads that at all material times he was a member of the Secondary Partnership; and at all material times prior to Robin's death on 5 April 2020, Robin was a member of the Secondary Partnership.
Jodie is the executrix of Robin's estate pursuant to a grant of probate issued to her on 23 June 2020 pursuant to a will dated 2 April 2020. In this proceeding, Jodie in her capacity as executrix is named as the third defendant. Marlene by her guardian ad litem, the Public Trustee, is named as the fourth defendant.
A memorandum of appearance has been filed for the third defendant (that is, Jodie in her capacity as executrix of Robin's estate) and the fourth defendant (that is, Marlene by her guardian ad litem). Marlene, through her guardian ad litem, did not take an active part in the hearing of this application.
Ashley pleads that the Primary Partnership commenced farming operations in about 1993 over farm properties referred to as 'Gemlee' located at Pingrup. Particulars are provided of various parcels of land by reference to their certificates of title, which Ashley pleads together constituted the Gemlee Land. Ashley pleads that prior to the sale of the Gemlee Land, which was registered on 15 March 2015, the Gemlee Land was held by Ashley, Robin and Marlene as joint tenants in equal shares; and the Gemlee Land was Primary Partnership property.
As to the Secondary Partnership, Ashley pleads that it commenced farming operations in about 2004 over a farm property referred to as 'Gemlee South', also located at Pingrup. Particulars are provided of the land by reference to its certificate of title, which Ashley pleads constituted the Gemlee South Land. Ashley further pleads that prior to the sale of the Gemlee South Land, which was registered on 17 March 2015, the Gemlee South Land was held by Ashley and Robin as joint tenants in equal shares; and the Gemlee South Land was Secondary Partnership property.
Ashley pleads that the Primary Partnership and the Secondary Partnership conducted a farming business together from the Gemlee Land and the Gemlee South Land, which included but was not limited to growing grain and raising sheep. He also pleads that additional property (an investment property and plant and equipment) forms part of the Primary Partnership's property, alternatively it did form part of the Primary Partnership's property prior to sale. Nine items of plant and equipment which Ashley says form (or formed) part of the Primary Partnership's property are described in the pleading, and Ashley pleads for each the date of sale and the amount for which it was sold. The date of sale ranges from 23 March 2015 to 'in or about 2016/17' (which I understood to be a reference to the financial year ending 30 June 2017).
Ashley also pleads that additional property (an investment property) formed part of the Secondary Partnership's property, prior to sale of that property, which was registered on 28 October 2020.
Ashley pleads that as at 30 June 2017, there remained assets in the Primary Partnership and the Secondary Partnership.
As to access and use of borrowings, Ashley pleads that the Primary Partnership holds, alternatively at all material times held, a Revolving Agri Line bank account facility in the names of Ashley, Robin and Marlene trading as MJ Melvin & Sons with the Australian New Zealand Bank (defined in the pleading as the Overdraft Facility). Ashley further pleads that the Primary Partnership used the Overdraft Facility for the Primary Partnership and the Secondary Partnership's farming business, including to finance the purchase of or pay for fertiliser, weed killer, balling and transportation services, and other goods and services required for the farming business of the Primary Partnership and the Secondary Partnership.
Ashley pleads that from the commencement date of the Primary Partnership up to and including the financial year ending 30 June 2015, he, Robin and Marlene split the Primary Partnership profits equally; and from the commencement date of the Secondary Partnership up to and including the financial year ending 30 June 2015, he and Robin split the Secondary Partnership profits equally.
Among other things, Ashley pleads that between 1993 and March 2013, he, Robin and Marlene all lived on the Gemlee Land and the Gemlee South Land and worked together.
Ashley pleads that he ceased working in the Primary Partnership and the Secondary Partnership's farming business in about March 2013, and ceased to live on the Gemlee Land and the Gemlee South Land from that date.
Ashley pleads that by a letter dated 6 May 2013 from Ashley to the Primary Partnership and the Secondary Partnership's accountant, STA Solutions Pty Ltd, he evinced an intention to terminate the Primary Partnership and the Secondary Partnership. Ashley also pleads that between about May 2013 and August 2014, he attempted to negotiate an orderly termination of the Primary Partnership and the Secondary Partnership with Robin on his own behalf and on behalf of the Primary Partnership, the Secondary Partnership and Marlene, but Ashley, Robin and the Primary Partnership, the Secondary Partnership and Marlene did not agree on the terms of a termination of the Primary Partnership and the Secondary Partnership.
Ashley pleads that in or about late August or September 2014, Robin, on his own behalf and on behalf of the Primary Partnership, the Secondary Partnership and Marlene, spoke to Ashley by telephone and informed Ashley that the Primary Partnership would not be terminated but would continue with Robin, Ashley and Marlene as the members of the Primary Partnership; and the Secondary Partnership would not be terminated but would continue with Robin and Ashley as the members of the Secondary Partnership. Ashley pleads that Robin effectively rejected any attempt by Ashley to terminate the Primary Partnership and the Secondary Partnership.
Ashley pleads that following the telephone conversation described at [20] above:
(a)Ashley accepted that the Primary Partnership and the Secondary Partnership were not terminated but continued with Robin, Ashley and Marlene as the members of the Primary Partnership; and Robin and Ashley as members of the Secondary Partnership; and
(b)the Primary Partnership and the Secondary Partnership were not terminated in 2013 or 2014 but continued with Robin, Ashley and Marlene as the members of the Primary Partnership; and Robin and Ashley as the members of the Secondary Partnership; or
(c)in the alternative to (b) above, the Primary Partnership and the Secondary Partnership were terminated and reinstated with effect from the date of termination and, in any event, continued to operate, respectively, as the Primary Partnership between Ashley, Robin and Marlene; and the Secondary Partnership between Ashley and Robin, until the date of Robin's death on 5 April 2020.
Ashley pleads that before and after March 2013, the Primary Partnership and the Secondary Partnership continued to operate the farm business including by using the Gemlee Land and Gemlee South Land, the plant and equipment of the Primary Partnership and the Overdraft Facility.
As to when the Primary Partnership and the Secondary Partnership dissolved, Ashley pleads that they dissolved on 5 April 2020 by reason of Robin's death.
Ashley pleads that he has not been paid his share of the Primary Partnership profits for the financial years ending 30 June 2016 and 30 June 2017 and thereafter. He also pleads that in the financial year ending 30 June 2016, the Secondary Partnership allocated an amount of $82,542.45 as a payment of tax on his behalf but no such payment was made.
Further, Ashley pleads that assets held by the Primary Partnership and the Secondary Partnership on or immediately before 5 April 2020 have not been distributed, alternatively he has not received all of his share of those assets.
Jodie does not seek to strike out pars 1 ‑ 32 of Ashley's amended statement of claim, in which Ashley pleads the material facts summarised above.

The impugned pleadings

Before bringing the strike out application, Jodie through her legal representatives raised in correspondence concerns with respect to Ashley's pleading from par 33 onwards. Following conferral, some amendments were made to the prayer for relief. However, the amendments did not resolve the controversy and by this application Jodie presses for the following paragraphs of Ashley's amended pleading to be struck out:
(a)pars 33(a) and (b);
(b)par 33(c) to the extent that it is statute barred;
(c)pars 34(a) and (b);
(d)par 34(c) to the extent that it is statute barred; and
(e)pars A - F and I (to the extent that it refers to a common law action in 'damages'), and J of the prayer for relief.
It is convenient to reproduce below par 33 onwards of Ashley's amended pleading. The text struck through records the amendments made by Ashley to his original pleading following conferral.
33) Pursuant to the plaintiff's rights and entitlements under the Primary Partnership, the plaintiff:
a) Claims a one-third share of the Primary Partnership profits as follows:
i) A one-third of a total of $1,098,517, namely $366,170.67, for the financial year 2015/16;
ii) A one-third of a total of $199,586, namely $66,528.67, for the financial year 2016/17; and
iii) A one-third share of Primary Partnership profits in ensuing years, if any;
b) Claims a one-third share of the Primary Partnership net assets upon dissolution of the Primary Partnership; and
c) Requires a passing of accounts of the Primary Partnership from 1 July 2013 to the present, alternatively date of dissolution.
34) Pursuant to the plaintiff's rights and entitlements under the Secondary Partnership, the plaintiff:
a) Claims a one half share of the Secondary Partnership profits for any years in which they were unpaid, if any;
b) Claims payment of the sum of $82,542.45 referred to in paragraph 29) above; and
c) Requires a passing of accounts of the Secondary Partnership from 1 July 2013 to the present, alternatively the date of dissolution.
AND THE PLAINTIFF CLAIMS
A. ~~Debt in the sum of~~ $432,600.34, being the one-third share of Primary Partnership profits for the financial years 2015/16 and 2016/17.
B. ~~Debt for o~~One-third share of Primary Partnership profits from 2017/18 and onwards.
C. ~~Debt for o~~One-third share of Primary Partnership net assets sold on or after 1 July 2013, and upon dissolution of the Primary Partnership.
D. ~~Debt in the sum of~~ $82,542.45, being an amount allocated for the plaintiff's tax in the Secondary Partnership for the financial year 2015/16.
E. ~~Debt for o~~One half share of Secondary Partnership profits from 2015/16 and onwards.
F. ~~Debt for o~~One-half share of Secondary Partnership net assets sold on or after 1 July 2013, and upon dissolution of the Secondary Partnership.
G. The following account and inquiry be taken and made:
a. an account of all dealings and transactions between any of the parties as co-partners from 1 July 2015 to present; and
b. an inquiry of what are the credits, property and effects of the Primary and Secondary Partnerships.
H. Such further entitlements as may be found upon the taking and making of the account and inquiry of the Primary and Secondary Partnership referred to in G above.
I. Damages and compensation.
J. Interest on the debts, damages, compensation and unpaid net value assets upon the dissolution of the Primary and Secondary Partnerships pursuant to section 32 of the Supreme Court Act.
K. Costs.

The position of the third defendant

Jodie, in her capacity as executrix of Robin's estate, says that there are deficiencies in the amended statement of claim that warrant strike out. As noted above, the deficiencies are described as falling within two categories. First, Jodie complains that Ashley pleads causes of action which are not recognised as a matter of law; and secondly, Jodie complains that Ashley pleads claims which are statute barred.

Causes of action which are said to not be recognised as a matter of law

As to the first category, the complaint is developed as follows:
(a)Ashley by this proceeding claims that certain debts are owed to him by partnerships of which he was a member;[1]
(b) by his amended pleading, Ashley pleads claims in debt which are common law claims;[2]
(c)the amendments to the prayer for relief (that is, the removal of the word 'debt') do not change the nature of Ashley's claim. In this regard, counsel for Jodie notes that at pars A and D of the prayer for relief, Ashley seeks to recover two specified amounts, namely $432,600.34 (said to be the one third share of Primary Partnership profits for the financial years ending 30 June 2016 and 30 June 2017); and $82,542.45 (said to be an amount allocated for Ashley's tax in the Secondary Partnership for the financial year ending 30 June 2016);[3]
(d) neither during the continuance of a partnership, nor after its determination, does a partner have any cause of action at law to recover moneys due to him from his fellow partners. The amount owing to a partner by his fellow partners is recoverable only by the taking of accounts in equity after a partnership has been dissolved;[4] and
(e)it follows that Ashley's common law claims for recovery of debts allegedly owing to him from the pleaded partnerships disclose no reasonable cause of action, as the pleaded claims for the recovery of debts are not recognised causes of action as a matter of law.[5]
[1] Third defendant's submissions par 10.
[2] Third defendant's submissions par 12, citing Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221, 231 (Brennan J).
[3] Third defendant's submissions par 13.
[4] Third defendant's submissions par 11, citing Commissioner of State Taxation v Cyril Henschke Pty Ltd [2010] HCA 43; (2010) 242 CLR 508 [22] (French CJ, Gummow, Hayne, Heydon & Kiefel JJ), and In the matter of Pinata Pty Ltd (in liq); Killen v Hamilton [2012] NSWSC 162 [50] (Hammerschlag J).
[5] Third defendant's submissions par 12.

In light of the above, it is submitted that pursuant to the RSC O 20 r 19(1)(a) and/or (c), the following parts of Ashley's pleaded claim ought be struck out:[6]
(a)pars 33(a) and (b);
(b) pars 34(a) and (b); and
(c) pars A, B, C, D, E, F, I (to the extent that it refers to a common law action in 'damages'), and J of the prayer for relief.

Matters which are said to be statute barred

[6] Third defendant's submissions par 14.

As to the second category, the complaint is developed as follows:
(a)Ashley at par 22 of the amended statement of claim (described at [18] above), pleads:
The plaintiff ceased working in the Primary and Secondary Partnerships' farming business in about March 2013, and ceased to live on the [Gemlee Land and the Gemlee South Land] from that date.
(b)Ashley at par 23 of the amended statement of claim (described at [19] above), pleads:
By letter dated 6 May 2013 ('Letter') from the plaintiff to the Primary and Secondary Partnerships' accountant, STA Solutions Pty Ltd, the plaintiff evinced an intention to terminate the Primary and Secondary Partnerships.
(c)the effect of Ashley's pleading at pars 22 and 23 was that, in fact, the Primary Partnership and the Secondary Partnership ended when Ashley left the Gemlee Land and the Gemlee South Land. That is, there were farming partnerships when the partners worked the Gemlee Land and the Gemlee South Land, but when one of the partners left and stopped working on the Gemlee Land and the Gemlee South Land the partnerships ended, and once they ended, time began to run for the purposes of the Limitation Act 2005 (WA);[7]
(d)pursuant to his rights and entitlements under the Primary Partnership and the Secondary Partnership, respectively, Ashley pleads that he requires a passing of accounts of the Primary Partnership and the Secondary Partnership from 1 July 2013 to present, alternatively the date of dissolution;[8]
(e)pursuant to s 26 of the Limitation Act, an action for account cannot be commenced if the limitation period for the cause of action that is the basis for the duty to account has expired;[9]
(f)as the effect of Ashley's pleading at pars 22 and 23 was that, in fact, the Primary Partnership and the Secondary Partnership ended in March or May 2013, and Ashley is not entitled to a passing of accounts of the Primary Partnership and the Secondary Partnership from 1 July 2013, because having commenced this proceeding in March 2021 Ashley's claim for a taking of accounts is statute barred;[10]
(g)Ashley also claims a one third share of assets sold on or after 1 July 2013 in respect of the Primary Partnership, and one half of assets sold on or after 1 July 2013 in respect of the Secondary Partnership;[11]
(h)prior to amendment, these claims (at pars C and F of the prayer for relief) were expressed as being claims in 'debt'. The amendment to the statement of claim removes references to the word 'debt' but that does not alter the claims being claims in debt;[12]
(i)the limitation period for a claim in debt is 6 years by operation of s 13(1) of the Limitation Act, and the limitation period for an equitable action is 6 years since the cause of action accrued by operation of s 27(1)(a) of the Limitation Act, subject to s 27(1)(b);[13]
(j)Ashley's claims in 'debt' (if such claims exist) would be clearly statute barred as the writ was filed in March 2021, and Ashley's claims in debt date back to 2013 in circumstances where the limitation period is 6 years;[14]
(k)as to the submission made on behalf of Ashley that the pleaded claims are not statute barred because they are debts which are repayable on demand under s 59 of the Limitation Act,[15] there can be no claim in debt by Ashley against his fellow partners,[16] and therefore s 59 can have no application; and
(l)while generally speaking, limitation issues are best decided at trial and should only be determined at an interlocutory stage in the clearest of cases,[17] Ashley seeks relief which is clearly statute barred, and in this case, the limitation issue ought not to wait for a determination at trial.
[7] ts 6 ‑ 7 and 16 - 17 (3 August 2021). In support of the proposition that a partnership can be terminated by conduct, counsel drew the court's attention to Fazio v Fazio [2012] WASCA 72 [64] ‑ [76], [412] (Murphy JA); and Ryder v Frohlich [2004] NSWCA 472 [135] ‑ [152] (McColl JA).
[8] See pars 33(c) and 34(c) of the amended pleading, reproduced at [28] above.
[9] Third defendant's submissions par 17.
[10] ts 5 (3 August 2021).
[11] See pars C and F of the prayer for relief, reproduced at [28] above.
[12] ts 5 ‑ 6 (3 August 2021).
[13] Third defendant's submissions par 17.
[14] Third defendant's submissions par 19.
[15] Third defendant's submissions par 20; Affidavit of J Woodford, JW‑1 page 10.
[16] Third defendant's submissions par 20, citing Commissioner of State Taxation v Cyril Henschke Pty Ltd [22] (French CJ, Gummow, Hayne, Heydon & Kiefel JJ).
[17] Third defendant's submissions par 18 citing Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [47] (Martin CJ, Murphy & Mitchell JJA).
In the course of the hearing counsel for Jodie clarified that it was not submitted that Ashley's entire claim is statute barred.[18] Rather, noting that the proceeding was commenced by Ashley in 2021, counsel submits that 'on whatever view of the pleadings is taken, whether it is an account, whether it is a debt - even though we say there can't be a debt - then to the extent that it relates to anything arising from the termination of the two partnerships in 2013, all of those claims are clearly statute-barred.'[19]
[18] ts 8 (3 August 2021).
[19] ts 5 (3 August 2021).
Counsel foreshadowed that Jodie's defence will be that the Primary Partnership and the Secondary Partnership terminated in 2013 when Ashley left the Gemlee Land and the Gemlee South Land and never returned; the Primary Partnership and the Secondary Partnership did not continue and neither were reinstated; the partnership property was subsequently sold; and as Ashley seeks relief in respect of partnerships that terminated in 2013, his claim is statute barred.[20] Further, if the Primary Partnership and the Secondary Partnership were in fact reinstated in or about late August or September 2014 as pleaded, the reinstated partnerships were different partnerships than those that were terminated, and thus the relief with respect to the Primary Partnership and the Secondary Partnership (as defined in the amended pleading) must fail.[21]
[20] ts 8 - 9 (3 August 2021).
[21] ts 8 - 9 (3 August 2021).
Asked how the court ought proceed in light of the pleading as a whole (noting that Ashley pleads that the Primary Partnership and the Secondary Partnership continued, alternatively were reinstated, and does not plead that they were dissolved in 2013), I understood counsel to suggest that the court ought now rule or record that to the extent that Ashley seeks relief from partnerships which in fact ceased upon him leaving the Gemlee Land and the Gemlee South Land in March 2013, that relief is statute barred.[22]
[22] ts 17 (3 August 2021).
In light of the above, it is submitted that pursuant to the RSC O 20 r 19(1)(a) and/or (c), the following parts of Ashley's pleaded claim ought be struck out:[23]
(a) par 33(c) to the extent that it is statute barred;
(b) par 34(c) to the extent that it is statute barred; and
(c) pars C and F of the prayer for relief.
[23] Third defendant's submissions par 21.

The position of the plaintiff

Causes of action which are said to not be recognised as a matter of law

Counsel on behalf of Ashley notes that the paragraphs of the amended pleading complained of as disclosing no reasonable cause of action concern Ashley's claims to:[24]
(a) a one third share of the Primary Partnership profits (the Primary Partnership having been a partnership of three partners), quantifying that claim to the extent possible on the pleaded facts;[25]
(b) a one third share of the Primary Partnership assets on dissolution;[26]
(c) a half share of the Secondary Partnership profits;[27]
(d) a half share of the Secondary Partnership assets on dissolution;[28]
(e) payment of $82,542.45 deducted from the Capital Accounts and allocated to Ashley by the Second Partnership, but not paid;[29] and
(f) interest on those amounts.[30]
[24] Plaintiff's submissions par 8.
[25] Referring to par 33(a) and pars A, B and I of the prayer for relief.
[26] Referring to par 33(b) and pars C and I of the prayer for relief.
[27] Referring to par 34(a) and pars E and I of the prayer for relief.
[28] Referring to pars F and I of the prayer for relief.
[29] Referring to pars 29 and 34(b) and pars D and I of the prayer for relief.
[30] Referring to par J of the prayer for relief.
Counsel for Ashley acknowledges that Ashley has pleaded what he believes is owed to him.[31] However, it is Ashley's position that:
(a) up to and including the financial year ended 30 June 2015, the affairs of each of the Primary Partnership and the Secondary Partnership were conducted such that the profit each year was split evenly between the relevant partners, and absent any agreement of a majority of partners to the contrary, the affairs of each of the partnerships should have continued to be conducted that way;[32] and
(b)partners are entitled to share equally in the capital and profits of the partnership business, and on dissolution of the partnership, each partner is entitled, as against the other partners, to their share of the net assets of the partnership.[33]
[31] ts 22 (3 August 2021).
[32] Plaintiff's submissions par 9, referring to s 34(9) of the Partnership Act 1895 (WA).
[33] Par 10, referring to s 34(1) of the Partnership Act; and to s 57(3) of the Partnership Act in relation to the distribution of assets on winding up.
On behalf of Ashley, counsel submits that the claims described above at [37] are made in a context where a taking of accounts and inquiry into the financial dealings of the Primary Partnership and the Secondary Partnership are also sought, and further in a context where it is pleaded that the partnerships dissolved on 5 April 2020.[34] While Ashley maintains that the partnerships dissolved on 5 April 2020, it is Ashley's position that the taking of accounts ought go back to 2013, as the breaches complained of occurred from July 2013 and continued to the termination of the partnerships in 2020.[35]
[34] Plaintiff's submissions par 10; ts 22 (3 August 2021), referring to pars 33(c) and 34(c) and par G of the prayer for relief.
[35] ts 24 - 25 (3 August 2021).
Counsel further submits that it should have been clear to Jodie on the face of the amended pleading that the remedy of account was not pleaded in the alternative to a claim in debt.[36] Further, counsel submits that the amounts claimed by Ashley are framed not as debts, but as amounts Ashley maintains are owed to him while acknowledging that there needs to be an account taken to confirm the same.[37] Counsel says that it is not wrong to set out in the amended pleading what Ashley says the proper outcome of a taking of accounts will be, which is said to have informed the pleas at pars 33 and 34 and pars A - F of the prayer for relief.[38]
[36] ts 23 (3 August 2021).
[37] ts 24 (3 August 2021).
[38] ts 25 (3 August 2021); plaintiff's submissions par 11.
In the circumstances, Ashley says that the matters referred to on behalf of Jodie summarised at [30(d)] above, do not make the impugned pleadings (identified at [31] above) unarguable or without basis.[39] In this regard, counsel notes the amendments to Ashley's pleaded claim and submits that while Ashley has attempted to quantify parts of his claim, it is clear that he no longer frames his claim in the nature of a debt.[40]
[39] ts 13 (3 August 2021).
[40] Plaintiff's submissions par 12.
Further, in circumstances where Ashley pleads that the Primary Partnership and the Secondary Partnership have been dissolved and orders are sought for account and inquiry, counsel submits that it is not unarguable, or without basis, to liken Ashley's claims to that of a debt. In this regard, counsel refers by analogy to the treatment of an outgoing partner's share at s 56 of the Partnership Act, noting that at this stage, it is not known what Jodie's position will be with respect to Ashley's status in relation to the Primary Partnership and the Secondary Partnership.[41] Counsel further submits that partners can be described as joint debtors in their joint estate.[42]

Matters which are said to be statute barred

[41] Plaintiff's submissions par 12, footnote 19; ts 25 - 26 (3 August 2021).

[42] Plaintiff's submissions par 12, footnote 12, referring by way of example to the discussion in Woods & White v Hopkins [2016] WASC 16 [47] - [50], [77] and [86] (Acting Master Gething).

In response to the second deficiency complained of, counsel on behalf of Ashley submits that:
(a)by pars 33(c) and 34(c) of the amended statement of claim, Ashley seeks a passing of the Primary Partnership and the Secondary Partnership accounts;[43]
(b)claims are made and relief is sought by Ashley in a context where Ashley pleads that the Primary Partnership and the Secondary Partnership dissolved on 5 April 2020;
(c)if, as submitted on behalf of Jodie, amounts become recoverable by a partner from a fellow partner 'only by the taking of accounts in equity after a partnership has been dissolved', then on Ashley's pleaded case, the relevant limitation periods will not expire until 5 April 2026 at the earliest;[44]
(d)it is undesirable that a limitation question should be decided in advance of the hearing of the action, except in the clearest of cases;[45] and
(e)this is not the clearest of cases, and adopting Jodie's analysis, if Ashley's pleaded case is established and the partnerships are found to have in fact terminated in 2020, then Ashley's claims are made well within time.[46]
[43] Plaintiff's submissions par 4.
[44] Plaintiff's submissions par 5, referring to s 13, s 26 and s 27 of the Limitation Act.
[45] Plaintiff's submissions par 6, citing Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron & McHugh JJ), 559 (Toohey J).
[46] Plaintiff's submissions par 6.
While counsel for Ashley acknowledges that a partnership can be terminated by the conduct of the parties, counsel also notes that the question of whether a partnership was in fact terminated by conduct is a question to be determined at trial after hearing the evidence.[47]
[47] ts 26 - 27 (3 August 2021); plaintiff's supplementary submissions par 2, referring to Fazio v Fazio [64] ‑ [76], [412] (Murphy JA); and Ryder v Frohlich [135] ‑ [152] (McColl JA).
Counsel notes that the relevant course of conduct in the amended statement of claim is pleaded in pars 22 to 26 (summarised at [18] ‑ [21] above), and says that the pleading at par 22 (in which it is pleaded that Ashley ceased working in the Primary Partnership and the Secondary Partnership's farming business in about March 2013, and ceased to live on the Gemlee Land and the Gemlee South Land from that date), should not be read on its own as conduct terminating all relevant partnerships, particularly as Ashley has also pleaded the continuation, alternatively reinstatement of the partnerships.[48]
[48] Plaintiff's supplementary submissions par 3(a); ts 21 (3 August 2021).
In any event, counsel submits that in light of the whole of the pleading, it cannot be said that Ashley's conduct must, without any trial or hearing of evidence of contested facts, amount to termination of the relevant partnerships, noting by way of example that the fact that a person contributes no labour to a partnership or partnership business may denote nothing more than the person being a 'sleeping' or 'dormant' partner.[49]
[49] Plaintiff's supplementary submissions par 3(b), referencing Halsbury's Laws of Australia, Vol 305 [305-1]; ts 21 (3 August 2021).
It is Ashley's position that there were breaches of the obligations of the Primary Partnership and the Secondary Partnership which occurred before the partnerships were dissolved in 2020, and he is not statute barred on his pleaded claim from seeking an account from July 2013.[50]
[50] ts 24 (3 August 2021), referring to Mirco Bros Pty Ltd v Palermo Nominees Pty Ltd.
In these circumstances, Ashley seeks that the application be dismissed with costs.

The evidence and submissions

The application was supported by the affidavit of Jennifer Woodford, Jodie's solicitor, sworn 19 April 2021, to which Ms Woodford attached documents marked JW‑1 to JW‑4.
Ms Woodford's affidavit is a brief one, to which she attached correspondence as between the parties concerning Ashley's pleading. As required by the RSC O 59 r 9, a memorandum of conferral was filed with the application. Ms Woodford does no more than attach to her affidavit the correspondence as between the parties by which conferral took place, which correspondence was referenced and described in the memorandum of conferral.
The application was also supported by a written outline of submissions and list of authorities.
In opposition to the application, Ashley affirmed an affidavit on 14 May 2021, to which he attached documents marked AGM‑1 to AGM‑3.
Counsel for Jodie objected to pars 10(b) and 13 of Ashley's affidavit being read on the basis that they did not comply with the RSC O 37 r 6(3A), in that the affidavit contained statements of information and belief and failed to set out the sources or grounds of that information or belief. Counsel for Ashley noted the nature of the application and sought to read the affidavit for context, albeit did not seek to particularly rely on it.[51]
[51] ts 18 - 19 (3 August 2021).
I proceeded cognisant that no evidence is admissible on an application under O 20 r 19(1)(a).[52] I also proceeded on the basis that conceptually, the plea under challenge must be, in effect, taken at its highest as it presents; however, documents referred to by the pleading may be legitimately referred to in the evaluative process.[53] As the documents attached to Ashley's affidavit were all referenced in his amended pleading, I allowed the affidavit to be read for the limited purpose allowed, and did not allow the objection.
[52] RSC O 20 r 19(2), as discussed in LexisNexis, Civil Procedure Western Australia (online version) at [20.19.5], citing Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [70] (Buss P, Beech & Vaughan JJA).
[53] LexisNexis, Civil Procedure Western Australia (online version) at [20.19.5], citing Built Environs WA Pty Ltd v Perth Airport Pty Ltd [No 4] [2020] WASC 382 [10] (K Martin J), citing Day v William Hill (Park Lane) Ltd [1949] 1 KB 632; [1949] 1 All ER 219 (Bucknill & Singleton LJJ).
A written outline of submissions, which incorporated a list of authorities, was filed on behalf of Ashley. A short supplementary written submission was also filed on behalf of Ashley in opposition to the application after the conclusion of the hearing.

Applicable principles

By the application Jodie seeks that certain paragraphs of the amended statement of claim be struck out pursuant to the RSC O 20 r 19(1) on one or more of the following grounds:
(a)they disclose no reasonable cause of action; or
(b)they may prejudice, embarrass or delay the fair trial of the action.
The requirements of a proper pleading and the grounds upon which a pleading may be struck out pursuant to the RSC O 20 r 19(1) were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4]. It is convenient to reproduce that summary below:[54]
[54] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (Smith J) (citations omitted); which summary was approved on appeal: English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] (Murphy & Vaughan JJA).

(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.

I did not understand there to be any controversy as between the parties as to the requirements of a proper pleading, nor the grounds upon which a pleading may be struck out pursuant to the RSC O 20 r 19(1). I have adopted the principles set out above in the determination of the application.
I turn to consider whether it would be open to Ashley (on the amended pleading) to prove facts at the trial which would constitute a cause of action. I proceed on the basis that if the facts pleaded by Ashley conceivably give rise to relief, then the cause of action should be held to be reasonable. Further, I proceed on the basis that the facts alleged in the pleading are established.[55]
[55] LexisNexis, Civil Procedure Western Australia (online version) at [20.19.5], citing English v Vantage Holdings Group Pty Ltd [104] (Murphy & Vaughan JJA).

Disposition

Causes of action which are said to not be recognised as a matter of law

The first complaint pressed on behalf of Jodie is grounded upon two propositions. First, that Ashley pleads claims in debt which are common law claims; and secondly, that such claims are not recognised at law because neither during the continuance of a partnership, nor after its determination, does a partner have any cause of action at law to recover moneys due to him from his fellow partners. That is, the amount owing to a partner by his fellow partners is not recoverable by suing on a debt but is recoverable only by the taking of accounts in equity after a partnership has been dissolved.
As to the first proposition, counsel for Jodie refers to Pavey & Matthews Pty Ltd v Paul, a decision which concerned an action upon a quantum meruit for the value of work done and materials supplied under an oral building contract, and whether that claim was debarred by s 45 of the Builders Licensing Act 1971 (NSW). I understood counsel for Jodie to particularly rely upon that part of Brennan J's decision at (231) where it was observed that a debt for a certain sum could also found an action of debt,[56] his Honour having earlier in the reasons described the origin of the alternate remedies of suing on a contract or suing on the debt which arises on the performance of a contract.[57]
[56] Plaintiff's submissions par 11.
[57] Pavey & Matthews Pty Ltd v Paul (230) (Brennan J).
While counsel acknowledges that Ashley's pleading was amended to remove references to debt in the prayer for relief, counsel says that Ashley has in fact pleaded an action of debt, made plain by the pleading of claims for quantified amounts.[58]
[58] ts 12 ‑ 13 (3 August 2021).
As to the second proposition, counsel for Jodie refers to Commissioner of State Taxation of the State of South Australia v Cyril Henschke Pty Ltd, a decision which concerned the retirement of a partner and whether an instrument identified as a deed of retirement was a 'conveyance on sale' within the meaning of s 60 of the Stamp Duties Act 1923 (SA). I understood counsel for Jodie to particularly refer to and rely upon the following observation made at [22]:[59]
The significance of the interplay between the law of contract and the doctrines and remedies of equity was further explained by Lord Millett in Hurst v Bryk (21). His Lordship observed that disputes between partners and the dissolution and winding up of partnerships have always fallen within the jurisdiction of the Court of Chancery, and continued (22):
'This is because, while partnership is a consensual arrangement based on agreement, it is more than a simple contract (to use the expression of Dixon J in McDonald v Dennys Lascelles Ltd (23)); it is a continuing personal as well as commercial relationship. Neither during the continuance of the relationship nor after its determination has any partner any cause of action at law to recover moneys due to him from his fellow partners. The amount owing to a partner by his fellow partners is recoverable only by the taking of an account in equity after the partnership has been dissolved (24). Only the Court of Chancery was equipped with the machinery necessary to enable such an account to be taken, and the basis upon which the account was taken reflected equitable principles. These could be modified by agreement, but they did not find their source in contract.'
[59] ts 12 ‑ 13 (3 August 2021).
I note that the nature of a partner's interest as a chose in action as was described in United Builders Pty Ltd v Mutual Acceptance Ltd (1980) 144 CLR 673, 687 ‑ 688 was also accepted as the established doctrine of the court in Commissioner of State Taxation of the State of South Australia v Cyril Henschke Pty Ltd at [27] ‑ [28]. As was there noted, a partner's interest consists of a right to a proportion of the surplus after the realisation of the assets and payment of the debts and liabilities of the partnership.[60]
[60] United Builders Pty Ltd v Mutual Acceptance Ltd (35) citing Federal Commissioner of Taxation v Everett (1980) 28 ALR 179 as referenced in Commissioner of State Taxation of the State of South Australia v Cyril Henschke Pty Ltd [27] - [28].
As to the second proposition, the following observations of Hammerschlag J in In the matter of Pinata Pty Ltd (in liq); Killen v Hamilton [2012] NSWSC at [50] are also referenced and relied upon by counsel for the applicant:[61]
For over 150 years it has been settled that neither during the partnership nor after its termination has any partner a cause of action at law to recover monies due to that partner from his fellow partners. The amount owing to one partner by his or her fellow partners is recoverable only by the taking of an account in equity after the partnership has been dissolved; see Richardson v Bank of England [1838] EngR 897; 41 ER 65. This principle has been affirmed by the High Court as recently as 2010; see Commissioner of State Taxation v Cyril Henschke Pty Ltd (above) at 445 [22]; see also Hurst v Bryk [2002] 1 AC 185.
[61] ts 12 ‑ 13 (3 August 2021).
At [44], Hammerschlag J also observed:
Long standing authority establishes that a partner's share in a partnership does not give the partner title to specific property but is a right to the partner's proportion of the surplus after realisation of assets and the payment of debts and liabilities. It is a fractional interest in a surplus of assets over liabilities on a winding up and in the future profits in the partnership business; see Bolton v Federal Commissioner of Taxation [1965] ALR 481 at 485, 491; Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) Pty Limited [1974] HCA 22; (1974) 131 CLR 321 at 327; Commissioner of State Taxation v Cyril Henschke Pty Ltd [2010] HCA 43; (2010) 272 ALR 440 at 446 [24].
I have given careful consideration to the authorities cited. I proceed on the basis that the traditional view is that a partnership interest is an equitable interest in the nature of a chose in action, as s 33 of the Partnership Act provides.[62] Each partner has an interest in each asset of the partnership by virtue of his or her interest in the partnership. However, this interest does not give a partner the right to assert control over any particular asset or to appropriate it to his or her individual use, to the exclusion of the firm, so long as the partnership subsists. Rather, it is a right to that partner's aliquot share of the surplus after realisation of partnership assets and payment of debts and liabilities, ascertainable on liquidation.
[62] Section 33 of the Partnership Act (Meaning of 'partner's share'), which section provides that 'the share of a partner in the partnership property at any time is the proportion of the then existing partnership assets to which he would be entitled if the whole were realised and converted into money and after all the then existing debts and liabilities of the firm had been discharged'.
It is therefore not a title to specific property but is merely a right to share in any surplus on a winding up after the partnership's debts and liabilities have been paid. For that reason, the nature of the retired partner's share or the share of a deceased partner in the assets of a firm is in the nature of debt rather than any real interest, as s 56 of the Partnership Act provides. A person admitted to a partnership is entitled to share in the assets of the partnership in existence at that date, unless there is an agreement to the contrary.[63] Section 56 of the Partnership Act makes clear that the obligation to pay any sum due from surviving or continuing partners to an outgoing partner or deceased partner's estate is an obligation which sounds in debt and not in trust.[64]
[63] Halsbury's Laws of Australia, Vol 305 [305-290], citing Gordon v Scott (1958) 12 Moo PCC 1; 14 ER 812; Waterer v Waterer (1873) LR 15 Eq 402; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310.
[64] Cameron v Murdoch (1986) 63 ALR 575, 588; Atwell & Atwell v Roberts [No 3] [2009] WASC 96 [53] (EM Heenan J), affirmed on appeal in Atwell v Roberts [2013] WASCA 37; (2013) 43 WAR 507 [153] (Buss JA), [247] (Murphy JA); Woods & White v Hopkins [50] (Acting Master Gething).
In considering this application, in light of the authorities cited and referred to above, I proceed on the basis that Ashley's pleading cannot not disclose a reasonable cause of action of a common law action of debt. That said, I do not understand that Ashley intends to plead a common law action of debt. That is, I do not understand counsel for Ashley to take issue with the principles summarised above, but rather says that Ashley did not intend to plead a common law action for an agreed sum or debt.
As to the character of the relief sought by Ashley, counsel sought to emphasise by submission that Ashley seeks a taking of accounts.[65] Counsel also says that it is not wrong to set out in the amended pleading what Ashley says the proper outcome of a taking of accounts will be, which is what informed the pleas at pars 33 and 34, and pars A ‑ F, and J of the prayer for relief.[66] In circumstances where Ashley pleads that the Primary Partnership and the Secondary Partnership have been dissolved and orders are sought for account and inquiry, counsel submits that it is not unarguable, or without basis, to liken Ashley's claims to being in the nature of a debt. Partners can be described as joint debtors in their joint estate.[67]
[65] ts 23 (3 August 2021).
[66] ts 25 (3 August 2021).
[67] Plaintiff's submissions par 12 footnote 20, referring by way of example to the discussion in Woods & White v Hopkins [47] - [50], [77] and [86] (Acting Master Gething).
Having regard to the way in which Ashley's claim has been pleaded, I consider that some amendment is required so that Ashley's case is more clearly expressed. While I accept that it is wrong to look at pars 33(a) and (b) and 34(a) and (b) of the prayer for relief in isolation, and I accept the effect of s 56 of the Partnership Act, it is difficult to discern what cause or causes of action are sought to be prosecuted by Ashley by the amended pleading, and the pleading is open to an alternative reading.
While it was submitted on behalf of Ashley that it should have been clear on the face of the amended pleading that the remedy of account was not pleaded in the alternative to a claim in debt, I consider that the pleading lacks the clarity required to inform the opposing party of the case that it must meet, and has the potential to raise false issues. Ashley's pleaded claim required counsel's explanation so as to be understood, and to inform the defendants of the case they must meet. To ensure a basic requirement of procedural fairness, a pleading must state the case sufficiently clearly to allow the other party a fair opportunity to meet it. It must define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court.[68]
[68] Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478 [17], citing Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 ‑ 287; Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [24] ‑ [26]; Nyoni v Patterson [2012] WASCA 171 [36] - [38].
Ashley accepts the importance of pleadings in the context of case management and meeting the objectives of the RSC O 1 r 4A and 4B. That is, properly defining the issues, and confining them to those that need to be resolved, assists in meeting the objects of O 1 r 4A and 4B.[69]
[69] Technip Oceania Pty Ltd v Cutmere Pty Ltd [16]; third defendant's submissions par 3; plaintiff’s submissions par 2.
Ashley's pleading at pars 33(a) and (b) and 34(a) and (b), together with pars A to F of the prayer for relief ought be struck out and repleaded so as to state specifically and with precision the relief or remedy claimed. They ought be struck out on the basis that they may prejudice, embarrass or delay the fair trial of the action, with leave to replead.
Further, there is an inconsistency between the account sought and a claim for damages at par I of the prayer for relief. It is not clear how Ashley can claim, by enforcement of his alleged right to share in any surplus on a winding up after the partnership's debts and liabilities have been paid, damages. I will strike out par I of the prayer for relief. I will also strike out par J of the prayer for relief to the extent it references debts and damages for the reasons set out above. While the basis upon which Ashley may be entitled to claim compensation is also unclear, references to compensation in pars I and J of the prayer for relief are not challenged by this application. However, counsel for Ashley may wish to consider the same when repleading and framing the prayer for relief.

Matters which are said to be statute barred

As was observed by Commissioner Braddock SC in Mirco Bros Pty Ltd v Palermo Nominees Pty Ltd [2005] WASC 190 [132], partners are not generally considered to be debtors and creditors between themselves during the currency of their partnership.[70] Further, time does not begin to run until the partnership is dissolved.[71]
[70] Citing R v Hurt (1954) 1 WLR 1309, 1311 - 1312; Noyes v Crawley (1878) 10 Ch D 31.
[71] Hewitt v Henderson [2006] WASCA 233 [27], citing Noyes v Crawley (38 ‑ 39) and Smith v Smith [1926] NZLR 311, 313 ‑ 314. See also Mirco Bros Pty Ltd v Palermo Nominees Pty Ltd [132].
It is clear that the timing of the dissolution of the Primary Partnership and the Secondary Partnership will be in issue in this proceeding.
As to the matters which are said to be statute barred, it is not Ashley's pleaded case that the Primary Partnership and the Secondary Partnership terminated in 2013. If Ashley had pleaded that the Primary Partnership and the Secondary Partnership terminated in 2013 and sought relief flowing from such termination, then I accept that there might be a sufficiently clear basis to strike out Ashley's claim. However, that is not Ashley's pleaded claim. Ashley's pleaded claim is that the Primary Partnership and the Secondary Partnership terminated upon Robin's death in 2020. Whether or not they did is a matter for trial.
Jodie now seeks to strike out pleaded claims on the basis of a claim that is not prosecuted by Ashley. What Jodie says is the effect of Ashley leaving the Gemlee Land and Gemlee South Land and ceasing to work in the family business grounds a defence to Ashley's claim. Jodie says that the legal effect of Ashley's alternative plea (namely that the partnerships were terminated and reinstated with effect from the date of termination) also grounds a defence to his pleaded claim. While these matters may well ground a cogent defence, they are not matters which ground a strike out of Ashley's amended pleading, nor in the context of a strike out application ought be the subject of a ruling or comment to the effect pressed on behalf of Jodie (that is, if the partnerships in fact ceased upon Ashley leaving the Gemlee Land and the Gemlee South Land in March 2013, that relief is statute barred).
An application to dismiss an action pursuant to the RSC O 20 r 19(1) may be combined with an application for summary judgment pursuant to O 16. In such a combined application the court is not bound by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider the undisputed facts as well as the facts which are in dispute.[72] However, Jodie does not press for summary judgment in this case. What is sought is the strike out of the impugned pleadings, but allowing Ashley to replead by filing a further amended pleading.
[72] McJannett v Gibbs [2012] WASC 369 [10]; citing Bride v Peat Marwick Mitchell [1989] WAR 383, 394; Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179 [22], as cited in LexisNexis, Civil Procedure Western Australia (online version) at [20.19.2].

In light of the case that Ashley pleads, the application to strike out pars 33(c) and 34(c) to the extent that they are statute barred must fail. Further, in light of the case that Ashley pleads, pars C and F of the prayer for relief ought not be struck out as being statute barred. As noted above, time does not begin to run until the relevant partnership dissolved,[73] which Ashley pleads occurred in 2020. Amounts that might be due and owing between the partners of the Primary Partnership and the Secondary Partnership did not crystallise and time did not commence to run until dissolution, and therefore on Ashley's pleaded case, he is not statute barred from seeking an account from July 2013, as I understand is the relief sought by pars C and F of the prayer for relief.[74]
[73] Hewitt v Henderson [27], citing Noyes v Crawley (38 ‑ 39) and Smith v Smith (313 ‑ 314). See also Mirco Bros Pty Ltd v Palermo Nominees Pty Ltd [132].
[74] ts 24 (3 August 2021), referring to Mirco Bros Pty Ltd v Palermo Nominees Pty Ltd (Braddock C).

Conclusion and orders

For these reasons, the application will succeed in part. Some amendment is required to ensure that Ashley's pleaded claim does not prejudice, embarrass or delay the fair trial of the action. Once the parties have the opportunity to consider these reasons, I will hear from them as to the form of order and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
29 SEPTEMBER 2023