Pereira v Hoddell - [2020] WASC 27

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PEREIRA -v- HODDELL [2020] WASC 27
CORAM:   REGISTRAR C BOYLE
HEARD:   11 SEPTEMBER 2019
DELIVERED          :   12 FEBRUARY 2020
FILE NO/S:   CIV 1756 of 2019
BETWEEN:   ALLAN AUGUST PEREIRA
Plaintiff
AND
GINA HODDELL
Defendant

Catchwords:

Pleadings – Abuse of process – Allegations contrary to findings in earlier action between parties

Legislation:

Family Court Act 1997, s 2052
Interpretation Act 1984, s 13A
Property Law Act 1969, s 34(1)(a)
Rules of the Supreme Court, O 20 r 19, O 21 r 9
Statute of Frauds, s 4

Result:

Statement of claim struck out and action dismissed

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr G R Dean

Solicitors:

Plaintiff	:	In Person
Defendant	:	Hammond Legal

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

Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191
Baumgartner v Baumgartner (1987) 164 CLR 137
Johnson v Hallam [2015] WASC 149
Marist Brothers Community Incorporated v Shire of Harvey [1994] WASC 675; (1994) 14 WAR 69
Muschinski v Dodds (1985) 160 CLR 583
Pereira v Hoddell [2018] FCA 96
Sheperd v Baster [2005] WASC 23
Shire of Harvey v Marist Brothers Community Incorporated [1993] WASC 212

REGISTRAR C BOYLE:

The defendant applies for orders that the plaintiff's statement of claim be struck out. That application rests on two grounds. The first is under Rules of the Supreme Court O 20 r 19(1)(a) and (c) that the statement of claim discloses no reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action. Further or alternatively, the defendant says that the statement of claim is an abuse of the process of the court and should be struck out pursuant to O 20 r 19(1)(d).
So far as the application rests on O 20 r 19(1)(a), no evidence is admissible: O 20 r 19(2). Subject to that limitation on its admissibility, the defendant relies on her affidavit sworn 7 August 2019. The plaintiff did not adduce any evidence on affidavit. He did file a 'Response' dated 11 July and further submissions on 22 August in response to the plaintiff's submissions filed 8 August.
The application also seeks that the action be dismissed. An attack on a pleading is not uncommonly advanced on the basis that the plaintiff should not be given leave to re-plead, and the action instead should be struck out. That is often a rhetorical flourish. But in this case, if the applicant's argument under r 19(1)(d) succeeds, it follows that the action must be dismissed. This is therefore no mere interlocutory skirmish after which the litigation will necessarily continue. Because one possible outcome is the dismissal of the action, I reserved my decision in order to be able to provide considered reasons to the parties.

Unrepresented litigants

The plaintiff is unrepresented. Counsel for the defendant properly acknowledged this in his oral submissions and pointed to the authorities referred to in Civil Procedure Western Australia [20.19.1A]. I note those. I note also that the plaintiff presented as quite articulate and confident in his manner in court. His written material shows a not entirely uninformed approach to questions of law and procedure. He did not present as overawed by the proceedings or in particular need of indulgence or assistance from the bench. As it appears, he is not without experience in litigation.

The relations between the parties and the progress of this action

The principal cause of action upon which the plaintiff relies is an agreement said to have been made between the parties in 1981. The statement of claim seeks various classes of relief said to be justified by pleaded breaches of that agreement.
These proceedings were begun by writ issued on 30 April 2019 having endorsed on it a statement of claim. The present application was brought on 3 July. After the application was programmed to a special appointment for hearing, the plaintiff filed an amended statement of claim. The amendments are not marked up in compliance with O 21 r 9(1). The defendant has not laboured this, other than to submit that the mere amendment of the statement of claim after an application is made to strike it out amounts to a concession of defects. The submissions at hearing were directed to the amended statement of claim in effect as if it were a substituted statement of claim. I think that was appropriate.

The structure of the statement of claim

In general terms, the structure of the amended or substituted statement of claim is as follows.
The first two paragraphs identify the parties. Paragraphs 3 to 8 are headed 'Background'. That heading in a pleading always rings alarm bells: the purpose of a pleading is to set out material facts, not 'background'. Paragraph 8 pleads that after the events referred to in paragraphs 3 to 7, the defendant purchased a property at Julimar Road, near Toodyay. That plea is not necessary to what follows, because the fact of the defendant's ownership of the property is set out again later.
Paragraphs 9 to 11 of the statement of claim are headed 'Oral Agreement'. I summarise these paragraphs ignoring (as did the defendant) numerous deficiencies of proper pleading form, but so as to extract the substance.
That plaintiff says that in 1981 there was an oral agreement between him and the defendant by which the defendant promised the plaintiff that she would 'in due course' transfer to him a one‑half interest in the Julimar Road property.
Paragraph 11 of the statement of claim sets out what are said to be the material terms of that oral agreement. There are 12 of those, lettered 'a' ‑ 'k' respectively. The defendant correctly submitted that some of those alleged terms (notably those lettered g and h) could not possibly be terms of the agreement. However, putting matters on the basis most favourable to the plaintiff, it could be said that paragraph 11 sets out the consideration that the plaintiff was to provide to the defendant in return for the promise. Those included that the plaintiff was to 'manage, supervise, and supply the majority of the labour necessary to build' a proposed resort facility on the land. The pleading concludes in sub‑paragraph k that it was expressly agreed that 'on fulfilment of the above terms' the defendant 'shall in due course transfer to the plaintiff one‑half interest in' the subject land.
Paragraphs 12 and 13 are headed, 'Further to the oral agreement of on or about February 1981'. That heading does not capture the real nature of what follows.
Paragraph 12 is in fact a plea of a further agreement in May 2016 following 'discussions as to settling our financial matter'. The paragraph pleads an agreement that (among other less important provisions) the defendant would sell the Julimar Road property and pay the plaintiff $500,000 from the proceeds. Paragraph 13 pleads that 'to confirm the agreement' the defendant gave the plaintiff a letter her solicitors had written to her 'confirming the agreement reached between the parties'.
In light of the conclusions I have reached, it is not necessary to examine in detail paragraphs 14 to 22. The headings under which they are set out provide a sufficient picture: 'Particulars of Plaintiff Contributions to Oral Agreement', 'Defendant Breaches of the Oral Agreement', and 'Ramifications'. The last is essentially a recital of damages claimed. There follows an extensive prayer for relief.
The defendant's objections to the prayer for relief are well founded but for reasons that follow need not be addressed in detail.

No reasonable cause of action

The defendant submits that paragraphs 3 to 8 of the amended statement of claim plead irrelevant matters and should be struck out. That is correct. No pleading should put an opponent to the choice of whether to engage in debate about irrelevancies.
That is a comparatively minor objection. The second, and greater, objection to the pleading about the oral agreement is that it contravenes s 34(1)(a) of the Property Law Act because, it is submitted, '… the alleged oral agreement created an interest in the land by parol'. The defendant cites Abjornson v Urban Newspapers Pty Ltd,[1] Johnson v Hallam,[2] and Sheperd v Baster.[3]
[1] Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 at 200 per Kennedy J.
[2] Johnson v Hallam [2015] WASC 149 [42] (Acting Master Gething).
[3] Sheperd v Baster [2005] WASC 23 [5] (Master Sanderson).
The amended statement of claim is fundamentally confused about whether the oral agreement of itself and without more created an interest in land. If that is the pleading, it is untenable as the defendant submits. Paragraph 1.2 of the prayer for relief seeks:
A declaration that upon making the Oral Agreement the Defendant held one half interest in the Title to The Land upon trust for the Plaintiff upon the terms referred to in paragraph 1(b) above and the beneficial title to The Land vested in the Plaintiff free of all claims by the Defendant.
The preceding sub-paragraphs of the prayer for relief reinforce that the plaintiff's case is that the 1981 oral agreement itself conferred on him a half interest in the land. Yet at other places, notably at what might be described as prayers 4 and 5 (the numbering is eccentric), the plaintiff seeks damages for breach, alternatively compensation.
Sub-paragraph 3.2 of the prayer for relief seeks:
A declaration that one half interest in The Land is held by the Defendant upon a constructive trust for the benefit of the Plaintiff absolutely.
That is different from and inconsistent with the primary claim set out in paragraph 11, which characterises the agreement as an express trust. The prayer does not refer to any pleaded facts that could give rise to a constructive trust. Nothing in the pleading suggests itself as the source for such a finding.
These various claims are mutually inconsistent. They are not available alternatives. It is impossible to tell what the real basis of the plaintiff's claim is. Paragraphs 8 to 11, and the dependent items in the prayer for relief (prayers 3.5 to 3.10 inclusive and 4 to 8 inclusive) must be struck out.
Whether the plaintiff should be given leave to replead any claim based on the alleged 1981 oral agreement is a different matter, even putting aside for the moment the submission of abuse of process that is dealt with below.
If the plaintiff is wedded to the proposition that the 1981 oral agreement created an interest in land, then it is doomed and cannot be repleaded. Yet there are indications that the plaintiff relies on both his post‑agreement acts and the defendant's to make a case that, even if the 1981 agreement did not create an interest in land by itself, he became entitled to it by virtue of later conduct. Those indications are found in paragraphs 11(k), 14 and possibly 13.
The defendant's submissions disregard the distinction between on the one hand a contract that purports of its own force to create an interest in land, and on the other hand a contract that imposes an obligation on one party, upon performance by the other, to create or transfer an interest in land. It is the distinction between a contract of sale and a contract for sale. The decision in Abjornson must now be read in light of the later decision of the Full Court in Marist Brothers Community Incorporated v Shire of Harvey.[4] That upheld a decision of Owen J,[5] who had found for the plaintiff (respondent) municipality which sued for specific performance of an agreement for the sale of land. In that case, the relationship between s 4 of the Statute of Frauds and s 34(1)(a) of the Property Law Act was explained. For present purposes it is sufficient to note that both those statutes are subject to (or rather, may be overtaken by) the law of part performance, and the possibilities of equitable relief.
[4] Marist Brothers Community Incorporated v Shire of Harvey [1994] WASC 675; (1994) 14 WAR 69.
[5] Shire of Harvey v Marist Brothers Community Incorporated [1993] WASC 212.
The plaintiff's pleading of the alleged oral agreement is deficient and embarrassing and should be struck out. That is for several reasons. First, the plaintiff has not pleaded any material facts that that would make enforceable an oral agreement that is itself unenforceable. Nor has he pleaded facts that could give rise to an estoppel against the defendant that would bar her from denying the agreement although he seeks a declaration to that effect at prayer 3.1.
Secondly, paragraph 19 pleads that, as a result of what are said to be breaches by the defendant of her obligations under the oral agreement, the plaintiff terminated that agreement in December 2017. If there was an enforceable agreement and the plaintiff was entitled to bring it to an end for breach and did so, his remedy would have been in damages for breach. Yet, as considered in more detail below, the plaintiff seeks specific performance of the alleged agreement.
I would not without more deny the plaintiff leave to replead on a basis other than that the alleged 1981 agreement of itself and immediately gave him a beneficial half interest in the land. There might, for instance, be some capacity to plead an arguable case building on an oral understanding or agreement that may not have been initially enforceable but become so by part performance. Or, there might just be a glimmer of a case based on the principles outlined in Muschinski v Dodds[6] and Baumgartner v Baumgartner.[7]
[6] Muschinski v Dodds (1985) 160 CLR 583.
[7] Baumgartner v Baumgartner (1987) 164 CLR 137.

Abuse of process

That leads to the other and more significant ground of objection, and the one that is truly determinative of this application. That is the ground based on O 20 r 19(1)(d).
The defendant submits that, principally by relying on the alleged 1981 oral agreement but also in subsidiary pleadings, the amended statement of claim is an abuse of process. That, it is submitted, is because the question of whether there was an oral agreement of the kind alleged has already been determined adversely to the plaintiff in earlier proceedings between the parties. If that is correct, then the amended statement of claim must be struck out with no leave to replead, and the action must be dismissed.

The Family Court proceedings

The earlier proceedings the defendant identifies were in the Family Court of Western Australia exercising its non-Federal jurisdiction under the Family Court Act 1997 (WA). In those proceedings the plaintiff applied pursuant to pt 5A of the Act for final orders that the defendant pay him the sum of $1 million. The plaintiff acted for himself.
In order to establish jurisdiction Mr Pereira as the applicant had to satisfy the court that the parties had lived together in a de facto relationship and that they had done so for a period of at least two years: Family Court Act s 205Z. The application was brought on for trial to determine the question of whether the parties had lived together in a de facto relationship and if so for how long. Following a four day trial, the court (Moroni AJ) found that there had never been a de facto relationship and published reasons.[8]
[8] Pereira v Hoddell [2018] FCA 96.
The Family Court Act does not define what is a de facto relationship: that definition is provided by s 13A of the Interpretation Act 1984 (WA), the relevant parts of which read:
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential ‑
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
While there is much in that definition that has no bearing on the matters the plaintiff pleads in this action, Moroni AJ canvassed the evidence relevant to paragraphs (e) and (f), which are the only paragraphs that bear on the subject of this action.
In the Family Court the plaintiff's case about his interest in the Julimar Road property was advanced on different bases at different times, as indeed it is in the statement of claim before me. Whichever way it was put, the outcome of those proceedings is directly relevant to these reasons.
Mr Pereira asserted, as part of his case that there was a de facto relationship between him and Ms Hoddell, that there was an agreement between them that meant either that he had an immediate half interest in the Julimar Road property, or that he had the right to require Ms Hoddell to transfer him a half interest following his performance of their bargain. That is, the plaintiff was asserting in those proceedings, as evidence of the existence of a de facto relationship, what is in undeniable substance the very agreement that he now pleads.
The allegation that there was such an agreement (whatever its exact legal nature) was rejected. His Honour noted, for example:[9]
The Applicant's case is that, from the outset, he had an equitable interest in the Julimar Road property to the extent of 50%. At no time has he disclosed such interest to Centrelink, absolving himself on the basis that his name does not appear on the certificate of title. However, such lack of disclosure is also consistent with the Applicant well knowing that he, at no time, ever held any proprietary interest in the Julimar property.
[9] Pereira v Hoddell [65].
Later, His Honour observed:[10]
It is the Applicant's case that he resided on the Julimar property from 1981 to 1990 on the basis of a promise by the Respondent to gift him a half interest in the project when completed. The evidence certainly does not support the conclusion that the Respondent ever made such an agreement with the Applicant, expressly or impliedly. The Applicant may well have hoped for such a gift, but it is difficult to see why he would be confident of such an outcome.
[10] Pereira v Hoddell [88].
Those two passages highlight the way the plaintiff's case shifted, or at the very least was not specific. In the first, there is reference to Mr Pereira's case being that he had a 50% equitable interest 'from the outset'. In the second, the case is a promise to give a half interest at a future time. It was not the obligation of the Family Court judge to divine the legal intricacies of what Mr Pereira was claiming: his Honour was examining whether the evidence showed either financial dependence or interdependence between the parties: Interpretation Act s 13A(2)(e); or an agreement as to 'the ownership, use and acquisition of their property': s 13A(2)(f). Given the nature of the enquiry in the Family Court proceedings, what mattered was whether there was any such agreement, not the legal characterisation of it.
His Honour found that:[11]
The Applicant has not established that there was any agreement between the parties for him to take any equitable interest in the Julimar property at the time it was purchased nor that his relationship with the Australian Taxation Office was in any way connected with the decision to register the title to the Julimar property solely in the name of the Respondent.
[11] Pereira v Hoddell [130].
Taken within the context of the reasons as a whole, the various passages cited above show that the judge wholly rejected the plaintiff's case that there was an agreement such as he now pleads in this action.

That being so, it is not open for the plaintiff to attempt to re‑litigate in this Court the issues that have been decided against him in the Family Court. His attempt to do so is an abuse of process and impermissible. The statement of claim must be struck out in its entirety with no leave to replead, and the action dismissed. I will hear the parties as to costs but, barring matters of which I may not be aware, costs should follow the event. As I have found that the bringing of this action was an abuse of process and for that reason could never have been allowed to proceed let alone succeed at trial, the order should be for costs on an indemnity basis.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Court Officer
4 FEBRUARY 2020