Mirkazemi v Payam Golestani t/as Priority 1 Real Estate
[2008] WADC 179
•11 DECEMBER 2008
MIRKAZEMI -v- PAYAM GOLESTANI t/as PRIORITY 1 REAL ESTATE [2008] WADC 179
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 179 | |
| Case No: | CIV:1190/2007 | NOT APPLICABLE | |
| Coram: | REGISTRAR KINGSLEY | 10/12/08 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | PEDRAM and SHAHRAM MIRKAZEMI PAYAM GOLESTANI t/as PRIORITY 1 REAL ESTATE |
Catchwords: | Practice Application to amend defence Turns on own facts |
Legislation: | Nil |
Case References: | S J Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
PAYAM GOLESTANI t/as PRIORITY 1 REAL ESTATE
Defendant
Catchwords:
Practice - Application to amend defence - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiffs : Mr T Bishop
Defendant : Mr J Davies
Solicitors:
Plaintiffs : Hotchin Hanly
Defendant : Curwood & Co
Case(s) referred to in judgment(s):
S J Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87
(Page 3)
1 REGISTRAR KINGSLEY: The defendant seeks to amend its defence in terms of a Minute of amended defence and counterclaim dated 29 August 2008. The plaintiffs plead that as trustees of the Caspian Trust, they purchased a property situate at 111 Newcastle Street, Perth ("the property"). The defendant was appointed their agent by way of an oral agreement. The plaintiffs plead express and implied terms of that agreement.
2 The plaintiffs plead the defendant undertook the management of the property by receiving rent and other monies from tenants of the property. The agency was terminated in January 2007. The plaintiffs plead the defendant has breached the agency agreement by failing to pay or account to the plaintiffs for all monies received from the tenants. The plaintiffs go onto plead that the defendant, from January 2007 to June 2007, has held himself out as one of the proprietor's of the property and has received rent in relation to the property.
3 In his defence, dated 28 September 2007, the defendant pleads that about 31 October 2003 the plaintiffs and the defendant orally agreed and formed the common intention that the property would be purchased for the benefit of a partnership comprised of the defendant and plaintiffs. Further, the agreement was that the parties were entitled to equal shares of any income or profits derived from the property. Further, whilst the property was purchased by the plaintiffs and registered in the joint names of the plaintiffs, the defendant would provide services, such as procuring approvals for redevelopment, project management of any redevelopment, and the procuring and managing the tenancy of the property.
4 The defendant pleads alternative claims by way of equitable estoppel and a constructive trust arising from a joint endeavour. The defendant seeks a declaration that the plaintiffs hold the property on a constructive trust for the benefit of the parties in equal one third shares and claims a one third interest in the property.
5 By the amendment to the defence dated 29 August 2008 ("the Minute") the defendant seeks to plead that in or about 31 October the parties orally agreed and formed the common intention (called the partnership agreement) to form a partnership for the purposes of developing the property. The material terms of the partnership agreement were that the first named plaintiff (Pedram) would be solely responsible for the cost of acquiring the property with the defendant undertaking work to procure necessary approvals for redevelopment, project management of
(Page 4)
- any redevelopment, and in procuring a suitable tenant for the property and managing the tenant of the property.
6 The defendant then seeks to plead that during the evening of 31 October the partnership agreement was varied, described as the first variation, whereby the second named plaintiff (Shahram) would become a partner in the partnership. Part of the particulars given in relation to the first variation include the particular that Pedram asked the defendant not to inform Shahram that the defendant was not contributing any money towards the purchase of the property.
7 The defendant in the Minute seeks to plead that on 20 March 2004 the partnership agreement was further varied, described as the second variation, to the effect that there were changes made as to entitlements of the profits arising from contribution of services and the making of repayments of loans required to purchase the property.
8 The plaintiff opposed the amendments on two grounds: Firstly, the amendments are embarrassing to the plaintiff and, secondly, the amendments are not properly particularised or in some cases the particulars are inconsistent with existing particulars.
9 The plaintiffs submit that any change in the constitution of a partnership dissolves the existing partnership and forms a new partnership – citing S J Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87 ("Mackie's case") in support.
10 In my opinion it is embarrassing to the plaintiffs to make an allegation that the partnership agreement was formed in or about 31 October 2003 and then to allege the partnership agreement has been varied, by the first variation, by the introduction of a new partner. As was stated by McPherson J in Mackie's case at p 90 the transfer of a share to a non partner breaks the continuity of the firm thus constituting a new firm or partnership. Accordingly, in my opinion, it is embarrassing for the plaintiffs to plead to the first variation when, at law, a new partnership agreement has been created.
11 The plaintiffs object to the proposed particulars at par 4(c) of the Minute in that one of the particulars is that Pedram asked the defendant not to inform Shahram that the defendant was not contributing any money towards the purchase of the property. The plaintiffs submit that it is embarrassing for the plaintiffs to plead to the partnership agreement and the first variation as there was no agreement because one party is unaware of the terms allegedly agreed.
(Page 5)
12 The fact that one party was bringing in a capital asset and the other two partners were, perhaps, bringing in business expertise does not, in itself, suggest that there cannot be an agreement. In my opinion, that issue raised, by the plaintiff, if it was the sole issue, would not affect a properly pleaded partnership agreement.
13 The plaintiffs also object to particulars of par 6 of the Minute. Paragraph 6 refers to the work undertaken by the defendant in reliance upon the partnership agreement. The plaintiffs submit that particulars are required of the preparatory work undertaken for the benefit of the partnership, the payments made to ANZ Bank and particulars of the securing of the suitable tenant and collection and remitting of rent.
14 In my opinion further and better particulars are required of the preparatory work and the payments made to the ANZ Bank. It is part of the defendant's claim that this preparatory work was undertaken and the plaintiffs are entitled to know precisely what is meant by this preparatory work. Further, in relation to the payments made to the ANZ Bank these payments were to be made on request of the plaintiffs. The plaintiffs are therefore entitled to know the particulars of the request and how much was paid.
15 In relation to the particulars of the tenancy, in my opinion, sufficient particulars of the tenancy have been given and no further particulars are required. However, particulars of par 6(e) as to the rendering of invoices for the work undertaken by the defendant for the benefit of the partnership ought to be given.
16 The plaintiffs have objection to the alternative claim in equitable estoppel pleaded in par 9 of the Minute. In my opinion the issue may be resolved once a proper partnership agreement has been pleaded.
17 At par 13 of the Minute the defendant pleads a constructive trust arising from the joint endeavour. At par 15 the defendant seeks to plead an intention by the defendant that when providing the services referred to in par 6, he would be entitled to a one third beneficial ownership of the Caspian Trust.
18 A constructive trust arises by operation of law and the intention of the parties is not a material fact. Accordingly, I am of the opinion that pleading the issue of intention in par 15 is embarrassing to the plaintiffs.
(Page 6)
19 The plaintiffs contend that the plea in par 19(b) of the Minute is inconsistent with existing particulars and, in any event, is inconsistent with the plea contained in 21(b) of the Minute.
20 Paragraph 19(b) of the Minute pleads that all rents paid by the tenants were paid by the defendant to the plaintiffs up to December 2006. Paragraph 21(b) pleads that since November 2006 rent that has been paid by the tenants to the defendant has been paid into a trust account and has not being disbursed pending resolution of the dispute. In my opinion there is an inconsistency between the two paragraphs such as to embarrass the plaintiffs.
21 As to the inconsistent plea with existing particulars the plaintiffs, submit that answer 12 of the further and better particulars of defence dated 6 February 2008 provides that between January 2007 and October 2007 rents were received from the tenant in the sum of $67,360 of which $10,929.41 was said to be remitted to the plaintiffs. Answer 12 of the defendant's answers refers back to answer 4(b) of the particulars dated 6 February 2008.
22 Paragraph 19(b) of the Minute states that up to December 2006 all rents paid by tenants were remitted to the plaintiffs, and that since November 2006 the rents have not been disbursed to the plaintiffs but held in a trust account. However, the particulars dated 6 February 2008 show that two payments totalling $10,929.41 were paid to the plaintiffs in February and March 2007. In my opinion there is an inconsistency between the pleading at par 19(b) and 21(b) and the existing particulars so as to embarrass the plaintiffs.
23 In the end, I am of the opinion, that the Minute is not a Minute to be allowed in as a pleading. The defendant's application is refused. I will hear the plaintiffs' and the defendant's counsel on the form of orders and on the issue of costs.
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