Moyle v Quarles as executor of the estate of Leslie Moyle
[2024] WASC 17
•23 JANUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MOYLE -v- QUARLES as executor of the estate of LESLIE MOYLE [2024] WASC 17
CORAM: LUNDBERG J
HEARD: 23 JANUARY 2024
DELIVERED : 23 JANUARY 2024
FILE NO/S: CIV 1770 of 2016
(Consolidated with CIV 1279 of 2022)
BETWEEN: ALAN LESLIE MOYLE
Plaintiff
AND
ALEXANDER FRANS HENRI QUARLES DE QUARLES as executor of the estate of LESLIE MOYLE
First Defendant
CHERIE PATRICIA CAMPBELL in her own capacity and as trustee for THE TESTAMENTARY TRUST CREATED IN THE WILL OF THE LATE LESLIE MOYLE FOR THE BENEFIT OF JOANNE MARGARET CAMPBELL
Second Defendant
FILE NO/S: CIV 2197 of 2022
BETWEEN: MOYLE HOLDINGS PTY LTD
Plaintiff
AND
ALEXANDER FRANS HENRI QUARLES DE QUARLES
First Defendant
QUARLES PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Proceedings against executor of estate - Separate proceedings against executor in his capacity as a director - Both proceedings being case managed together - Application by executor/director to have both proceedings heard together at trial - Issues in the two proceedings broadly similar - Case management considerations - Whether determination of application is premature - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20 r 9(1), O 83
Result:
Application adjourned.
Directions made to require the parties to confer as to variations to previous directions.
Category: B
Representation:
CIV 1770 of 2016
(Consolidated with CIV 1279 of 2022)
Counsel:
| Plaintiff | : | S P Tomasich |
| First Defendant | : | S M Standing |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Croftbridge |
| First Defendant | : | Arns & Associates |
| Second Defendant | : | Mossensons |
CIV 2197 of 2022
Counsel:
| Plaintiff | : | S P Tomasich |
| First Defendant | : | S M Standing |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Croftbridge |
| First Defendant | : | Arns & Associates |
| Second Defendant | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
Espanol Holdings Pty Ltd v Banning [2000] WASC 192
Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208
Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250
Nelson v Thompson [2020] WASC 261
Norilya Minerals Pty Ltd v Easterday [2009] WASC 191
Saker v Creative Land Management Pty Ltd [2000] WASC 44
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASC 80; (2019) 55 WAR 89
Walthamstow Pty Ltd v Caratti [2023] WASC 76
Table of Contents
A. Introduction
B. Evidence on the Application
C. Relevant principles
D. Issues arising in the proceedings
E. Disposition
Common parties
Common questions of fact and law
Case management considerations
Unfairness to the plaintiff and second defendant
Conclusion
F. Orders
LUNDBERG J:
A. Introduction
These proceedings arise out of the administration of the estate of the late Leslie Moyle who died on 23 July 2014. Mr Alexander Quarles De Quarles is the first defendant in both actions (Mr Quarles). He had been named as the executor in the will of Leslie Moyle and obtained a grant of probate on 3 October 2014.
Pursuant to the will, Leslie Moyle divided his estate equally between his children, Alan Moyle and Joanne Campbell, but subject to a hotchpot adjustment. Alan is the plaintiff, and Joanne is the second defendant (through her trustee), in one of the proceedings. Joanne has filed a notice to abide by the decision of the court, other than as to costs, and has not taken an active role in the proceedings since then.[1]
[1] Second Defendant's Notice of Intention to Abide filed 26 April 2023.
The present reasons relate to an application brought by Mr Quarles to have the two proceedings heard together at trial (Application). The two sets of proceedings are presently being case managed together.[2] The two proceedings are:
(a)proceeding CIV 1770 of 2016, which has been consolidated with action CIV 1279 of 2022 (the Estate Proceedings);[3] and
(b)action CIV 2197 of 2022 (the Company Proceedings).[4]
[2] Orders made on 20 September 2023.
[3] The Estate Proceeding were initially commenced by originating summons in May 2016 (CIV 1770 of 2016), with a further writ being filed in March 2022 (CIV 1279 of 2022). The two proceedings were then consolidated by order of Curthoys J made on 31 March 2022.
[4] The Company Proceedings were filed in the District Court in June 2020, and transferred in 2022 to the Supreme Court.
Mr Quarles submits that the court should exercise its power to regulate its own processes and order that the proceedings be heard together, given the asserted overlap of factual and legal issues in the proceedings. Mr Quarles submits that to do so would be consistent with the goal in O 1 r 4A of the Rules of the Supreme Court 1971 (WA) (RSC) and the objects in O 1 r 4B RSC.[5] Counsel for Mr Quarles points to the presence of the same substratum of facts in the two proceedings.
[5] First defendants' outline of submissions dated 12 January 2024 in the Estate Proceedings (identical submissions were filed in the Company Proceedings).
The second defendant in the Company Proceedings is Quarles Pty Ltd (QPL), which is separately represented. QPL is a company which appears to be owned and controlled by the first defendant, and which provides business and financial advice. The solicitors for QPL have been excused from attending the hearing of this Application, and indicated they will be bound by the decision of the court.[6]
[6] Orders made on 16 January 2024 in the Company Proceedings.
The Application is opposed by the plaintiffs in both proceedings, being Alan Moyle in the Estate Proceedings and Moyle Holdings Pty Ltd in the Company Proceedings (Moyle Holdings). Alan Moyle and Moyle Holdings contend, in opposing the Application, that the factual and legal issues are quite distinct as between these proceedings, and that a consideration of the relevant factors applicable to an application such as this points strongly against an acceptance of the first defendant's ultimate submission.[7]
[7] Plaintiff's outline of submissions dated 19 January 2024 in the Company Proceedings.
B. Evidence on the Application
The first defendant's application is supported by the affidavit of his solicitor, Mr Paul Arns, sworn 12 January 2024, which attaches various background documents (Arns Affidavit). The Arns Affidavit also attaches a number of items of correspondence issued by the former solicitors for Alan Moyle to the former solicitors for the first defendant, raising various issues with the ongoing administration of the estate. The correspondence seems largely to have been sent between January 2015 and November 2017. The communications display the growing discontent on the part of Alan Moyle with the first defendant's conduct and his apparent delays in providing responses to his queries
A short affidavit by the solicitor for Moyle Holdings, Mr Timothy Lethbridge, sworn on 19 January 2024 has been filed in the Company Proceedings, confined to a narrow matter as to the proposal to lead actuary evidence (Lethbridge Affidavit).
The court has also noted the contents of an affidavit sworn by Alan Moyle on 10 June 2021 (Moyle Affidavit) in the Company Proceedings (when those proceedings were pending in the District Court). Prior to the hearing today, I drew the Moyle Affidavit to the attention of the parties and invited submissions thereon.
Relevantly, Alan Moyle deposed in that earlier affidavit that, at that time, the allegations in the Company Proceedings were 'separate to, but are broadly similar to' the allegations in the Estate Proceedings.[8] Alan Moyle deposed that:[9]
[6]In broad terms, both disputes arose from the death of my father, Leslie Moyle, on 23 July 2014. My father appointed the first defendant to be his executor, which has given rise to the Supreme Court dispute. Following my father's death and possibly earlier (in the last few months of my father's life), the first defendant purported to act as a director of the first plaintiff.
[7]I commenced these proceedings on 13 June 2020 with a view to avoiding any risk of being precluded from pursuing the allegations due to the 6-year limitation date on such claims.
[8]I have not yet served these proceedings on the defendants because the nature of the allegations in these proceedings is broadly similar to the nature of the allegations in the Supreme Court proceedings – that is, in the Supreme Court proceedings, I am alleging that Mr Quarles did not properly invest the estate's assets and, in these proceedings, the first plaintiff and I are alleging that Mr Quarles did not properly invest the first plaintiff's assets. I therefore wish to wait until the Supreme Court proceedings have been determined (whether by way of judgment or settlement) before taking any substantial steps with respect to these proceedings.
[8] Moyle Affidavit, [5].
[9] Moyle Affidavit, [6] – [8].
The above affidavit was sworn by Alan Moyle before the pleadings were filed in the Company Proceedings, and the plaintiff's counsel made submissions to the effect that limited weight should accordingly be placed on the statements made. I did not understand counsel for the first defendant to resist that submission to any large extent.
C. Relevant principles
The principles applicable to the determination of the Application were not in dispute between the parties. The parties both referred to the principles which I had summarised in Walthamstow Pty Ltd v Caratti,[10] which are set out below.
[10] Walthamstow Pty Ltd v Caratti [2023] WASC 76.
It is clear that this court has the power to make an order that actions be heard together as an alternative to a formal order for consolidation, for which there is express power pursuant to O 83 r 1 RSC. The ability to make the order sought by the plaintiff emanates from the court's power to regulate its own procedures and through the express case management powers vested in the court.[11]
[11] Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 [65] (Le Miere J); Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [3] (Allanson J); Nelson v Thompson [2020] WASC 261 [18] (Smith J); and O 4A r 2 RSC.
An order concerning the joint determination of actions, such as is sought by the first defendant, is a case management order and so the court must have regard to the terms of O 1 r 4A and r 4B RSC and follow the course that best ensures the attainment of the objects set out in those rules.[12] The objects expressed in O 1 r 4B RSC are:
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
[12] Moondancer Holdings Pty Ltd v Navarac Pty Ltd [5] (Allanson J).
Indeed, the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd[13] expressly noted the importance of these objects in the context of the construction and application of O 83 RSC. The sentiment expressed by the Court of Appeal is undoubtedly of equal application to the exercise of the power to determine whether actions should be heard together, as an alternative to formal orders for consolidation.[14]
[13] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASC 80; (2019) 55 WAR 89 [410] (Buss P, Murphy and Beech JJA).
[14] Nelson v Thompson [21] (Smith J).
Keeping the broader objects stated in O 1 r 4B RSC firmly in mind, it is next necessary to identify the types of factors which the court should consider in assessing an application such as the present. There is considerable support for the view that the factors typically applied in determining consolidation applications should be applied in this setting.[15] I intend to follow that approach and so will have regard to the following factors as a useful guide in exercising the discretion:[16]
(a)whether there are common questions of law or fact or a common transaction or series of transactions, of sufficient importance which renders it desirable that the whole of the matters should be disposed of at the same time;
(b)whether it is convenient to hear the actions together, including whether it will prevent a multiplicity of actions and ensure savings of time and cost;
(c) whether the court is satisfied it is unlikely to result in unfairness to any party, or to prejudice a party's ability to conduct their case;
(d) whether it will be conducive to a just resolution of the issues; and
(e) whether there are any relevant practical matters which may make it inexpedient to adopt this course.
[15] Moondancer Holdings Pty Ltd v Navarac Pty Ltd [6] – [7] (Allanson J); Espanol Holdings Pty Ltd v Banning [2000] WASC 192 [4] (Sanderson M); and Nelson v Thompson [20] (Smith J).
[16] As summarised by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208 [81] and by Sanderson M in Saker v Creative Land Management Pty Ltd [2000] WASC 44 [2].
D. Issues arising in the proceedings
The Estate Proceedings and the Company Proceedings are not overly complex, and can be described in relatively brief terms. The following summary is drawn from the parties' submissions and from the pleadings which have been filed in both proceedings.
The first defendant, Mr Quarles, became the executor of the estate of the late Leslie Moyle in October 2014. The first defendant had been appointed as executor in the will of Leslie Moyle. The first defendant obtained a grant of probate on 3 October 2014. Pursuant to the will, Leslie Moyle divided his estate equally between his children, with a hotchpot adjustment.
The first defendant also became a director and secretary of Moyle Holdings Pty Ltd (the plaintiff in the Company Proceedings) after Leslie Moyle's death. He held those positions between about July 2014 and July 2019. It is further pleaded that QPL was engaged by Moyle Holdings to provide services to that company, and that this was arranged by the first defendant.
The diagram below provides a useful overview of the parties in the two proceedings and the interrelationship between them:
In the Estate Proceedings, the pleaded issues may be summarised as follows:[17]
(a)whether the first defendant was in a position of conflict by causing his accounting firm to charge for work done in the administration of the estate, and whether charges were reasonable. The defence raises legal and limitation issues, but also, alleges that the plaintiff knew of and, did not object to the conduct from late 2014 or early 2015;[18]
(b)whether hotchpot calculations were completed in a reasonable time. The defence raises issues arising from dealings between the first defendant and the plaintiff during the period from November 2014 to the end of 2018;[19]
(c)whether a property belonging to the estate should have been leased out. The defence raises issues arising from dealings between the first defendant and the plaintiff from late 2014 to the sale of the property in late 2018;[20]
(d)whether estate funds were appropriately invested between 2014 and 2020. The defence is that the first defendant at all times dealt with estate funds in accordance with his duty as pleaded;[21] and
(e)whether legal fees should have been paid from the estate.[22]
[17] See Statement of Claim dated 14 April 2022, First Defendant's Re-amended Defence dated 25 October 2023, and Reply dated 20 May 2022 (an amended reply has not yet been filed).
[18] First Defendant's Re-amended Defence, [6] and [8(c)].
[19] First Defendant's Re-amended Defence, [10] and [15(b)].
[20] First Defendant's Re-amended Defence, [13] and [20].
[21] First Defendant's Re-amended Defence, [19] and [4(f)].
[22] First Defendant's Re-amended Defence, [22] and [23].
In the Company Proceedings, the pleaded issues may be summarised as follows:[23]
(a)whether the first defendant, by his conduct from November 2014 to July 2019, exercised oversight over and gave directions regarding the affairs of the plaintiff such that he was a de facto or shadow director, and the consequences of that oversight;[24]
(b)the circumstances in which the first defendant did not return company funds to shareholders. The first defendant contends that, during the plaintiff's dealings with him, the plaintiff requested that there be no distributions from either the estate or company until the estate hotchpot calculations were completed;[25] and
(c)whether the first defendant and/or second defendant breached a duty to 'maximise' investment returns on company funds during the period from July 2014 to July 2019, having regard to the circumstances of the company and shareholders (and the estate) including whether the plaintiff did not want any distributions from the estate or company assets until the hotchpot calculation had been made.[26]
[23] See Re-Amended Statement of Claim dated 15 December 2022, First Defendant's Defence dated 1 February 2023, Second Defendant's Defence dated 6 February 2023, Reply to First Defendant's Defence dated 3 March 2023.
[24] First Defendant's Defence, [4(d)], [4(g)] and [11].
[25] First Defendant's Defence, [8].
[26] First Defendant's Defence, [10] and [12].
There is evidence that matters to do with the estate and company were dealt with by the parties as related issues, in the one course of dealings.[27] It follows, according to the first defendant, that much of the lay evidence to be led by the parties in the Estate Proceedings and the Company Proceedings is likely to comprise documentary and oral evidence about the one course of dealings between the parties (and their lawyers) regarding the estate and company.
[27] Arns Affidavit, [4] and [5].
Further, the first defendant emphasises that the plaintiff intends (or, at least, intended) to adduce actuarial and forensic accounting evidence in both proceedings from the same witness.[28] Mr Lethbridge has now deposed that he does not expect the plaintiff will lead actuarial evidence in the Company Proceedings.[29]
[28] Arns Affidavit, [6].
[29] Lethbridge Affidavit, [2].
In essence, the first defendant maintains that a number of factors point in favour of the court acceding to the Application.[30] The first defendant highlights that substantially the same evidence about the same course of dealings, and from the same witnesses, would be given in both proceedings, and that it is likely that hearing the two proceedings together will avoid repetitious evidence and save overall hearing time compared to consecutive hearings.
[30] First defendant's submissions, [9].
The first defendant further notes that a combined hearing would avoid the risk of inconsistent findings in respect of the same evidence, and lead to a likely reduction in legal costs for the parties (because there will be only one trial and only one lot of getting up, one bundle of trial documents, one process for adducing evidence and cross examination of witnesses, and one set of reasons for decision).
The plaintiff submits that, given the substantial divergence in factual and legal issues between the two proceedings, any potential benefits do not justify the proceedings being heard together.[31]
[31] Plaintiff's submissions, [31].
E. Disposition
I will turn now to consider the factors which are relevant to the determination of the first defendant's Application.
Common parties
The only common party between the two proceedings is the first defendant, Mr Quarles. That said, Alan Moyle is the plaintiff in the Estate Proceedings and the plaintiff in the Company Proceedings is the company of which he is the sole director and secretary, Moyle Holdings. There are a number of shareholders of that company, in addition to Alan Moyle, all of whom I understand are members of the Moyle family.
In substance, there is a high degree of commonality of interest between the two proceedings and a commonality of legal representation between the proceedings (in the case of the plaintiff and the first defendant in each matter), but not an identicality of parties.
Common questions of fact and law
The first defendant has identified a number of similarities between the issues, both factual and legal, in the proceedings, which I have mentioned above.
Some years ago, Alan Moyle swore an affidavit in which he deposed that the nature of the allegations in the Company Proceedings was broadly similar to those in the Estate Proceedings, and indicated in that affidavit a desire to allow the Estate Proceedings to run their course before further advancing the Company Proceedings. The contents of that affidavit provide a degree of support for the first defendant's position on the present Application, although given the early stage at which the affidavit was sworn, that degree of support is perhaps modest at best.
Counsel for the plaintiff in both proceedings has submitted at today's hearing that, while there is a common context for how the disputes have arisen, the two proceedings are concerned with different and separate issues relating to Mr Quarles' conduct.
The plaintiff in each proceeding has submitted that the main points of factual dispute in the Company Proceedings are as follows (although in some respects the first defendant characterises these matters as ultimate legal conclusions based on the facts, as will be found):
(a) should Mr Quarles have invested the funds of Moyle Holdings earlier and in a more productive way;
(b) whether Mr Quarles was entitled to become director of Moyle Holdings;
(c) whether QPL was liable for Mr Quarles’ conduct, either directly or by accessorial liability;
(d) whether Mr Moyle was a de facto or shadow director of Moyle Holdings;
(e) whether Mr Moyle was a concurrent wrongdoer in respect of any liability.
In contrast, the plaintiff asserts that the main points of factual dispute in the Estate Proceedings are:
(a) should Mr Quarles have invested the funds of the Estate earlier and in a more productive way;
(b) should Mr Quarles have done the Hotchpot Calculation at an earlier stage;
(c) should Mr Quarles have caused the estate to pay fees to QPL;
(d) should Mr Quarles have caused the estate to pay for his legal fees in defending the Estate Proceedings; and
(e) should Mr Quarles have rented out the Dianella Property.
The plaintiff in each proceeding has identified a range of different legal issues which arise in the proceedings. The plaintiff points to, among other things, the focus that arises in the Estate Proceedings on the duties owed by the executor to the beneficiaries, and the rights of the executor to be indemnified out of the estate. In comparison, the plaintiff notes the focus in the Company Proceedings will be on statutory duties and accessorial liability issues, as well as shadow director, apportionment and concurrent liability issues.
When viewed in totality, it does appear that, although the disputes do arise out of the same course of conduct, the precise factual and legal issues in the two sets of proceedings are not identical, but have some broad similarities.
Case management considerations
My impression from the state of the pleadings in the two proceedings is that a combined trial of the matters will require a trial of shorter length relative to the scenario in which two trials are required. Counsel for the plaintiff in each proceeding accepted that a combined trial would lead to a reduction in trial length, although it is difficult to be precise as to the extent of that reduction. The costs of the parties will undoubtedly be reduced, although it is difficult to say by how much. My experience is that there will be costs savings by reason of having a shorter hearing time, one lot of getting up, one trial bundle to produce and review, and one process for adducing evidence.
The factual witnesses in the proceedings will largely be the same (being Alan Moyle and Mr Quarles), and the same accounting expert witness engaged by the plaintiff is intended to give evidence in both proceedings. I have a real sense that the documentary material will be quite similar in the proceedings, particularly as concerns the correspondence and communications between the parties, but it will not be identical.
There will also be savings of judicial time and a reduced burden on the administrative resources of the court. Requiring a judge to prepare one set of reasons rather than two sets, is a further factor to consider as part of the calculus.
I am also conscious of the possibility that, despite the plaintiff's confidence that one judge could hear both actions, once the first trial is heard and determined, it would remain open for any party to make application to have the trial judge recuse himself or herself. That would potentially depend on the nature of the findings made, including whether any findings as to credibility had been made. However, the possibility of requiring two judges to hear the two trials is a relevant consideration in the assessment of this Application.
Unfairness to the plaintiff and second defendant
The plaintiff in each proceeding has raised the possibility of unfairness arising by reason of the admission of evidence at one trial which may be relied upon across the proceedings, and potentially operate to the detriment of the plaintiff. I must say I think this is a low risk, and the admission of (and reliance on) evidence in one proceeding to the potential detriment of the plaintiff in the other proceeding is an issue which can be managed by the trial judge. Counsel will be alert to these issues as well and will no doubt be able to make submissions at trial as to the appropriate and legitimate use of evidence in the proceedings.
The plaintiff in each proceeding has raised the additional costs issues which operate to its detriment by reason of having QPL attend at the entire final hearing. In the event the plaintiff was unsuccessful in the Estate Proceedings, it points to the risk of having to bear the burden of costs orders in favour of QPL arising from the Company Proceedings. There is a potential risk in this regard, but I consider it could be managed by appropriate formulation of costs orders at the conclusion of the trial and needs to be balanced, in any event, against the other factors mentioned.
Allied to the foregoing issues is the risk of inconsistent findings concerning the conduct of the parties involved, in the event two trials are required. The issues in the proceedings are distinct in many ways, but they do undoubtedly arise out of the one estate and the one course of conduct.
Conclusion
It must be recognised that the orthodox position is that the two proceedings should be heard and determined at separate trials. The question arising on this Application is whether a departure from the norm is justified.
Having regard to the factors which I have identified at [16] above, to which I have given careful consideration, the orders sought by the first defendant on the present Application are, in my view, finely balanced.
There is a high degree of commonality of interest and legal representation as between the two proceedings, and undoubtedly the disputes in the two matters arise out of the same substratum of facts. The proceedings will require the same factual witnesses to give evidence and to be cross-examined, and it is presently proposed that the primary expert witness will be common to both matters.
There are case management considerations, including a reduction in legal costs, savings of trial time, avoiding the risk of inconsistent findings, and a reduction in the burden on the court's resources, which are presently apparent, and which point in favour of the grant of the orders sought by the first defendant.
The two proceedings are also progressing in lock-step at present, and so would both be ready for trial at approximately the same time.
That being said, the proceedings focus on different aspects of the conduct of Mr Quarles, in his capacity as the executor and separately in his capacity as a director of Moyle Holdings. The different focus in this regard gives rise to a series of different factual issues in the two proceedings, with a degree of overlap.
The precise extent of that overlap is difficult to gauge at present. The degree of overlap represents an important focal consideration on applications such as the present because it will impact on the assessment of the risk of inconsistent findings by the court.
For this reason, I raised with both counsel at the hearing this morning whether the Application was premature, in the sense that a determination of this issue should await receipt of the witness outlines and the expert evidence. The programming orders made by the court on 20 December 2023, largely by consent, require the parties to attend to the filing of witness outlines and expert evidence in February through to April 2024. The orders contemplated the preparation of the trial book in tandem to this, during February and March 2024. The trial book was advanced up the batting order so to speak as a device to assist the parties to shorten the evidence to be filed.[32]
[32] ts 28 (20 December 2023).
A further delay in the consideration of this Application is unlikely to diminish the benefits of any ultimate decision to order that the trials of the actions be combined (should that be made). I say this because the proceedings are presently being case managed together and, whether they are the subject of a combined trial order or not, it will remain necessary for the parties to continue to separately file documents in each proceeding – the application is for the proceedings to be heard together, not to be formally consolidated.
There is also further issue to which the plaintiff should give consideration, namely whether an amended reply ought be filed in the Estate Proceedings. Significant amendments were made to the first defendant's defence in those proceedings, in October 2023. The reply on the court file is from May 2022. Counsel for the plaintiff, who has been newly briefed, should give prompt consideration to whether an amended pleading is required in order to address the freshly pleaded allegations and to comply with the requirements of O 20 r 9(1) RSC (although I do not propose to make any order to this effect).
I can see the benefits inherent in the first defendant's Application, but I consider, on balance, it is a decision which should wait until the court is seized of further information to enable it to make a more confident assessment of those benefits, relative to the risks and other concerns which the plaintiff has emphasised.
F. Orders
For the foregoing reasons, I propose to order that the first defendant's application in each proceeding be adjourned, but not dismissed, and the costs of the Application be reserved.
I propose to order the parties to confer as to the appropriate variations which should be made to the programming orders made on 20 December 2023 (being orders 18 to 27 in the Estate Proceedings and orders 19 to 28 in the Company Proceedings), to extend the time for the preparation of the trial book until after the lay and expert evidence has been filed.
The orders I propose to make in the Estate Proceedings and the Company Proceeding are as follows:
1.The first defendant's application to have the trial of proceeding CIV 1770 of 2016 (as consolidated with action CIV 1279 of 2022) be heard at the same time as the trial of action CIV 2197 of 2022, be adjourned sine die.
2.The costs of the first defendant's application be reserved.
3.The parties are to confer as to the variations which should be made to the orders made on 20 December 2023, to extend the time for the preparation of the trial book until after the lay and expert evidence has been filed, and any additional directions which should now be made consequent upon these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
23 JANUARY 2024
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