Pereira v Hoddell

[2021] WADC 72

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PEREIRA -v- HODDELL [2021] WADC 72

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   9 JULY 2021

DELIVERED          :   22 JULY 2021

FILE NO/S:   CIV 4262 of 2020

BETWEEN:   ALLAN AUGUST PEREIRA

Plaintiff

AND

GINA HODDELL

Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim as disclosing no cause of action and abuse of process - Turns on its own facts

Legislation:

Nil

Result:

Statement of claim struck out
Leave to replead not granted action dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Ms C J Smiddy-Brown

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Hammond Legal

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

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

DEPUTY REGISTRAR HEWITT:

1. By writ filed 23 November 2020 the plaintiff made a claim against the defendant for the sum of $500,000 together with interest pursuant to a contract allegedly entered between himself and the defendant on or about June 2016.  By a chamber summons dated 25 February 2021 the defendant applied for orders striking out the statement of claim on the basis that it disclosed no reasonable cause of action.  Alternatively, that the action was an abuse of process and on those grounds or one or other of them that the action should be dismissed and the plaintiff ordered to pay the defendant's costs.

2. In order to understand the issues which are raised by that application it is necessary to wind back the clock somewhat.  The evidence is that the plaintiff and the defendant have known one another since approximately 1974.  In 1981 the defendant purchased a property in Julimar Road which I believe to be in the general vicinity of the Town of Toodyay.  The plaintiff has made two previous claims in respect of this land, the first being an application in the Family Court of Western Australia tried from 17 - 20 April 2018 in which the plaintiff alleged that he and the defendant had, at the relevant time, a de facto relationship and that as a consequence he was entitled to a 50% share in the land.  That application was dismissed by Moroni AJ who found that the de facto relationship contended for by the plaintiff was not shown to have existed on the evidence before him and the application was therefore dismissed.

3. The plaintiff then commenced a proceeding in the Supreme Court of Western Australia in action CIV 1756 of 2019.  In that action the plaintiff contended that there was an oral agreement reached between the plaintiff and the defendant in 1981 under the terms of which the defendant promised the plaintiff she would in due course transfer to him a one half interest in the Julimar Road property.  In that action as in the present action the defendant applied to strike out the statement of claim on the grounds which fairly accurately mirror those in the application before me.  Registrar Boyle struck out the statement of claim and denied the plaintiff to replead the statement of claim on the grounds that the claim was an abuse of process and that there should be no leave to replead, thus ending the action.

4. The plaintiff has now brought a further action in which he alleges that an oral agreement was reached between the plaintiff and the defendant in or about June 2016 under the terms of which the defendant agreed to pay and the plaintiff agreed to receive the sum of $500,000 upon the selling of the Julimar Road property as compensation for services rendered by the plaintiff to the defendant over the years 1981 to 2016 inclusive.  The additional terms alleged by the plaintiff are in essence that the defendant would place the Julimar Road property on the market by 30 September 2016 and that he would be at liberty to continue to live on that property until sold.  Reference was made to this alleged agreement in the Supreme Court proceedings but the plaintiff did not rely on it and contended that in 1981 an agreement was reached which would entitle him to a 50% share in the property. 

5. The plaintiff says that the defendant has failed to honour the terms of the 2016 agreement, neither paying the $500,000 nor placing the property on the market and although pleaded rather more elaborately the essence of the plaintiff's claim is that he should receive damages in the sum of $500,000 together with any interest awarded.

6. I shall first deal with the strike out application based upon the proposition that it shows no reasonable cause of action and may prejudice, embarrass or delay a fair trial of the action.  No evidence is admissible on such an application although a great deal has been filed all of which is irrelevant.

7. The issue requires me to consider whether, if the plaintiff was able to establish the matters he pleads he would be entitled to receive the relief he seeks.  The first obstacle which the plaintiff encounters is that an agreement such as he alleges, to have contractual effect, would need to be supported by consideration.  In order for the plaintiff to have given consideration, on the pleading as it is framed, he would, in my opinion, need to have had an enforceable right to be paid for the work and assistance which he alleges he provided.  That work and assistance was, on his earlier actions, provided pursuant to an agreement between himself and the defendant in 1981 or alternatively as his contribution to their de facto relationship.  His claim in the Supreme Court and Family Court seeking to enforce such arrangements has failed and it therefore follows that there is no basis upon which it can be said that he had an enforceable right to be paid for services he allegedly rendered to the defendant between the years 1981 to 2016.  If there is no enforceable right to be paid for the services, they cannot form the basis upon which to uphold a contract.  Were the 2016 agreement to be a valid enforceable agreement, lacking as it appears to be, any consideration, the agreement would need to be in the form of a deed.  Since the agreement has pleaded to be an oral agreement it clearly is not supported by a deed and therefore in my view clearly not enforceable.  Additionally, whilst referring to the agreement in the proceedings before Registrar Boyle the plaintiff chose to pursue the alleged agreement made in 1981.  He could have pleaded the 2016 agreement in the Supreme Court action as an alternative but chose not to do so and is now estopped from doing so: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

8. I now turn to the issue as to whether the proceedings are an abuse of process.

9. It has been determined in the case decided by Registrar Boyle that the plaintiff's attempt to make recovery for those services by way of an entitlement to a part of the land required the court to make findings contrary to those which were found in the Family Court and therefore constitute an abuse of process.  Since it is necessary, in my opinion, to establish that there was a legal basis upon which the plaintiff was entitled to receive a benefit for those services, and since his attempt to go down that path was found to be an abuse it likewise seems to me that exactly the same issues which need to be canvassed in the present case are also an abuse of process and I so find.

10. The flaws which I find within the case are profound and in my opinion incurable and I therefore consider the appropriate order to make is to strike out the pleading and also deny the plaintiff the right to replead the matter, and therefore to dismiss the action.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

AO

Associate

22 JULY 2021