Palmiotti v Palmiotti
[2001] WASC 228
PALMIOTTI -v- PALMIOTTI & ORS [2001] WASC 228
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 228 | |
| Case No: | CIV:2330/1999 | 8 AUGUST 2001 | |
| Coram: | MASTER SANDERSON | 24/08/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application successful in part | ||
| B | |||
| PDF Version |
| Parties: | CORRADO PALMIOTTI ANTONIO GIUSEPPE PALMIOTTI CHRISTINE THERESE PALMIOTTI PALMIOTTI & CO PTY LTD (ACN 009 005 261) PASQUALINA PALMIOTTI |
Catchwords: | Practice and procedure Application for leave to re-amend defence Turns on own facts |
Legislation: | Nil |
Case References: | Palmiotti v Palmiotti [2001] WASC 132 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANTONIO GIUSEPPE PALMIOTTI
First Defendant
CHRISTINE THERESE PALMIOTTI
Second Defendant
PALMIOTTI & CO PTY LTD (ACN 009 005 261)
Third Defendant
PASQUALINA PALMIOTTI
Fourth Defendant
Catchwords:
Practice and procedure - Application for leave to re-amend defence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application successful in part
Category: B
Representation:
Counsel:
Plaintiff : Mr M S Macdonald
First Defendant : Mr R E Keen
Second Defendant : Mr R E Keen
Third Defendant : Mr R E Keen
Fourth Defendant : Mr R E Keen
Solicitors:
Plaintiff : Macdonald Rudder
First Defendant : Ron Kennealy
Second Defendant : Ron Kennealy
Third Defendant : Ron Kennealy
Fourth Defendant : Ron Kennealy
Case(s) referred to in judgment(s):
Palmiotti v Palmiotti [2001] WASC 132
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application to strike out certain paragraphs of the defendant's re-amended defence. (In fact the matter was dealt with on a summons issued by the plaintiff for leave to amend the statement of claim and for summary judgment. This approach was adopted for procedural convenience and with the consent of both parties). This application represents the latest in a line of interlocutory disputes between the plaintiff and the defendants.
2 For the purposes of this application it is unnecessary for me to detail the facts of the case. The plaintiff's claim was the subject of an application for summary judgment. The application was dismissed. In the course of providing reasons for dismissing the application I provided a brief summary of the dispute between the parties: see Palmiotti v Palmiotti [2001] WASC 132. Reference can be made to this earlier decision for a summary of the facts.
3 The plaintiff takes a number of objections to the re-amended defence. Objection is taken to par 5(a)(iv) of the defence. This paragraph of the defence relates to par 11A of the amended statement of claim. That paragraph is in the following terms (I have omitted the marking up and the deletions from the quoted paragraphs of the statement of claim and the defence. In the context of this application nothing turns on the fact of these additions and deletions):
"11A In or about early 1995:
(a) Mr Monaco met with the deceased and took instructions from her to the effect that she wished to leave her crayfishing interests to the plaintiff;
(b) Mr Monaco on instructions from the fourth defendant:
(i) drew a will for the deceased that in effect bequeathed;
A all of her said crayfishing interests to the plaintiff;
B the balance of her estate to her said children surviving her and the second defendant in equal shares.
(ii) drew a deed between the deceased as donor and the fourth defendant as donee
(Page 4)
- whereby the deceased gifted to the fourth defendant all of the Chattels;
- (iii) drew a transfer in the form T1 under the Transfer of Land Act 1893 to transfer the deceased's legal interest in the Residence to fourth defendant for a consideration expressed to be by way of gift;
(iv) advised the fourth defendant and the first, second and third defendants in relation to the transfer of the deceased's fishing interests to the first and second defendants;
(v) advised the fourth defendant to have the deceased examined by a medical practitioner to determine her capacity to transfer the residence and her crayfishing interests."
4 In response to that par 5 of the re-amended defence is in the following terms:
"5. As to paragraph 11A of the Statement of Claim:
(a) The Fourth Defendant:
(i) as to sub-paragraph (a) admits that Monaco met the deceased to take instructions from her but does not admit that the instructions were as alleged;
(ii) as to sub-paragraph (b)(i) admits that Monaco drew a will for the deceased but denies that it was on the instructions of the Fourth Defendant and the will will be referred to at trial for its full terms and effect;
(iii) admits sub-paragraphs (b)(ii) and (iii) but denies that the documents were drawn on her instructions;
(Page 5)
- (iv) denies that Monaco advised her as alleged in sub-paragraph (b)(c)(iv) and on her instructions.
(v) admits sub-paragraph (b)(v) save that she denies that the advice was given on her instructions.
- (b) The First, Second and Third Defendants make no admissions."
5 As I have mentioned, the plaintiff's complaint relates to par 5(a)(iv). It is said that the plea is incomplete because it does not deal with the other defendants. However, par 5(a) of the re-amended defence deals only with the fourth defendant. There is no obligation on her to deal with the other defendants and no criticism of the pleading can be made because she has not done so. Further, it is said that par 5(a)(iv) is internally inconsistent because the fourth defendant denies that Monaco gave certain advice but says that he did so "on her instructions". With respect, this seems to me to be a misreading of precisely what it is that is denied by the paragraph. The plea in par 11A(b) is that Monaco gave the advice after he was instructed by the fourth defendant. As I understand the re-amended defence, the fourth defendant denies that Monaco gave her the advice and denies that she instructed him such as to lead to the giving of the advice. This part of the re-amended defence can stand.
6 The second complaint made by the plaintiff is that par 5(b) is an improper plea. It is said that the first, second and third defendants must know as to whether or not the matters pleaded in par 11A occurred and either admit the facts as pleaded or deny them. I appreciate the plaintiff's concerns. However, it seems to me, given the way that par 11A of the statement of claim is framed, par 5(b) of the re-amended defence is proper. Paragraph 11A(a) is a plea as to what took place between Mr Monaco and the deceased. There is no allegation that the first, second and third defendants were present at this meeting and they may not know what occurred. In the circumstances they are entitled simply to not admit the paragraph. In relation to par 11A(b), the allegation is that Mr Monaco did certain things "on instructions from the fourth defendant". In the circumstances the first, second and third defendants are entitled not to admit that paragraph as they may not know whether or not the actions taken were taken by Mr Monaco on instructions from the fourth defendant. That is something particularly within the knowledge of
(Page 6)
- Mr Monaco and the fourth defendant and the first, second and third defendants are entitled to remain silent on that question.
7 Paragraph 11B of the statement of claim is in the following terms:
"11B By letter dated 30 January 1995 from Mr Monaco to the fourth defendant Mr Monaco:
(a) supplied to the fourth defendant a first draft of the deceased's will;
(b) sought information from the deceased to enable him to effect a transfer of the deceased's crayfishing interests and the Chattels."
"5.1 As to paragraph 11B of the Statement of Claim:
(a) Save that the Fourth Defendant admits receipt of the letter and draft will as alleged she makes no admissions as to the matters set out therein and will refer at trial to the letter for its full terms and effect.
(b) The First, Second and Third Defendants make no admissions."
10 By par 12A of the statement of claim the plaintiff alleges that in or about February 1995 the first and second defendants, or alternatively the second defendant, orally informed the accountant of the third defendant in relation to two matters. By par 6.1 of the re-amended defence the first and second defendants admit that Flynne was advised "as to the deceased's wishes" but deny that those wishes were as pleaded by the plaintiff. The defendants clearly delineate the issue between the parties and in my view the pleading is in a proper form.
11 In par 12B of the statement of claim the plaintiff refers in subpar (a) through to subpar (f), to a number of documents said to have been
(Page 7)
- prepared by Flynne. By par 6.2 of the re-amended defence the defendants admit that certain documents specified in the subparagraphs were prepared but deny what the plaintiff pleads to be the nature or effect of those documents. The defendants further make a general non-admission in relation to the pleading in par 12B. What the re-amended defence makes plain is that the defendants take issue with the plaintiff over the meaning of the documents. In other words, the documents are in issue. The plaintiff knows the nature of the defendants' case. I am satisfied the plea is in a satisfactory form.
12 By par 12C and par 13D the plaintiff alleges that the defendants "procured the deceased to sign certain documents". By par 6.3(b) and par 7.4(b) the defendants do not admit that such signatures were "procured". The plaintiff says this allegation should be either admitted or denied. The defendants say that the use of the word "procured" is embarrassing because it is capable of a variety of meanings and the defendants do not know precisely in what context the word is used. Further, the defendants say that they have admitted that they presented the documents to the deceased for signature. In the circumstances they say a non-admission is appropriate. I agree. I think the word "procure" in this context is imprecise and the defendants are entitled to adopt the cautious approach of simply not admitting the allegation.
13 The plaintiff complains of par 6.3(d) of the amended defence. The defendants have agreed to rectify what is clearly an error and I need say nothing more about this paragraph.
14 Complaint is made as to par 6.4 of the re-amended defence. The defendant's response is to say that all that is lacking is particulars. That is clearly correct. I will make the usual order with respect to particulars of this paragraph.
15 Complaint is made with respect to par 7.2 of the re-amended defence. The complaints are said to be grammatical. The defendants acknowledge these complaints and propose a rewording of part of the paragraph. This should cure any problems.
16 Paragraph 13C of the statement of claim is in the following terms:
"13C Pursuant to the instructions referred to in paragraph 13B above, Mr Flynne prepared or caused to be prepared a document entitled Resolution of members and directors of Palmiotti & Co as trustee for the Palmiotti Unit Trust that recorded a resolution of the members and directors of the
(Page 8)
- fourth defendant varying the resolution he had prepared in 1995 (referred to in paragraph 12B(a) above) to the effect that the deceased's units were redeemed for no consideration."
17 In response, par 7.3 of the re-amended defence reads as follows:
"Save to repeat paragraph 7.2 hereof and subject thereto and to say that the resolution will be referred to at trial for its full terms and effect, the Defendants admit paragraph 13C of the Statement of Claim."
18 Paragraph 7.2 is in the following terms:
"Each and every allegation in paragraph 13B of the Statement of Claim is denied. In or about early June 1997 the Second Defendant advised Flynne that the deceased wished the pot licences referred to in paragraph 12(B)(a)(ii) of the Statement of Claim and not transferred to she as alleged in paragraph 12F of the Statement of Claim to remain in the Palmiotti Unit Trust (the 'Trust'). To effect that wish a resolution was passed by the members and directors of the Third Defendant as trustee for the Trust that the resolution referred to in paragraph 12B(a)(ii) of the Statement of Claim be amended to provide for redemption of those 5 units for no consideration."
19 The plaintiff says that par 7.3C is incomprehensible both because of its reference to par 7.2 of the re-amended defence and because it is not clear which part of par 13C is admitted and which part is denied. In response the defendants say that the allegations in par 13C are admitted save that the instructions were as set out in par 7.2 of the defence rather than par 13B of the statement of claim. It is not easy to understand, at least on first reading, precisely what is meant by par 7.3, particularly when it must be cross-referenced with par 7.2 and then reference made back to par 13B of the statement of claim. Nonetheless, after a number of readings, I am satisfied that the defendant's position is reasonably clear and that the paragraphs ought be allowed to stand.
20 Paragraph 14 of the statement of claim appears under the heading "Expropriation of Funds". It is alleged (by par 14(a)) that as at the date of her death the deceased stood possessed of a credit balance held by the third defendant as trustee of the Palmiotti Unit Trust and (by par 14(c) sic) that the third defendant is now indebted to the estate of the deceased in an amount equal to the former credit balance. Paragraph 7.7 pleads to
(Page 9)
- par 14(a) of the statement of claim. By par 7.7(c)(i) it is said that the amount shown in the third defendant's balance sheet as being the fund in the name of the deceased was "in error". Reference is then made to par 6.1(ii) of the re-amended defence. Quite how par 6.1(ii) of the re-amended defence is relevant is unclear. Nonetheless the issue between the parties is quite clear. It is essentially the matter which was the subject of the summary judgment application. The plaintiff has put her allegations and she knows how and in which way they are met by the defendants. In my view nothing further would be served by requiring amendment to this paragraph. The same can be said of the complaints levelled against par 7.7(c)(ii). The defendants have agreed to provide particulars of this paragraph and that is sufficient.
21 Complaint is made as to par 7.9. The defendants have offered to amend to remove any lingering confusion which may arise with respect to this paragraph and it is appropriate that they take this course. Similarly complaint is made of par 7.14. The defendants have offered to make an amendment to this paragraph and that should remove any confusion.
22 Paragraph 14(a) of the re-amended defence deals with par 20 to par 20.3 of the statement of claim. Paragraph 16.1 deals with par 22 to par 22.2 of the statement of claim. Both of these paragraphs "make no admissions" as to the respective paragraphs in the statement of claim. The paragraphs in the statement of claim deal with the meaning and effect of certain documents. In each of the two paragraphs of the re-amended defence it is said that the documents will be referred to at trial for their full terms and effect. It might perhaps have been better if the defendants had pleaded out what they say is the meaning and effect of these documents. However, it is the fact that the documents speak for themselves. In the circumstances the paragraphs can stand.
23 Paragraph 14(d) of the re-amended defence denies par 20.6 of the statement of claim. Paragraph 20.6 pleads that the deceased did not consent to certain matters. In other words, the plea in the defence is in fact a positive allegation. The plaintiff says that the defendants must plead all material facts relied upon to support that allegation. That is correct. Provision of particulars will not suffice. Material facts must be pleaded. Paragraph 14(d) of the re-amended defence will be struck out with leave to re-plead. The same complaint is made of par 16.2(a) of the re-amended defence which relates to par 22.3 of the statement of claim. Once again I am satisfied that the plaintiff's point is well made and material facts ought be pleaded. Paragraph 16.2(a) will be struck out. Counsel for the defendants, in his submissions, proposed a form of
(Page 10)
- par 16.2(b) which, it is said, would cure the problems with par 16.2(a). However, that would not appear to cure the problem about which the plaintiff complains. As matters stand at present, I think the better option is to strike out par 16.2(a) even if par 16.2(b) is to be amended as proposed by the defendants. If necessary I will hear further argument in relation to this paragraph.
24 Complaint is made of par 17 of the re-amended defence. The plaintiff says that the reference in that paragraph to par 6.4 of the statement of claim is confusing. However, I am satisfied that the defendant's position is clear and the paragraph should stand. However, a reading of par 17, together with par 6.4 makes it clear that the defendants were making a positive allegation that the deceased did not require any independent assistance, explanation or advice. Particulars of that allegation should be provided.
25 Finally, complaint is made of par 21.1. It is said that this is inconsistent with par 7.14. It may be that there is some inconsistency between these two paragraphs but it is not a point of such significance as to require further amendment to the defence. The paragraph in its present form can stand.
26 I will hear the parties as to the precise form of orders and as to costs.