Pickard v Khalaf

[2005] NSWSC 1085

CITATION:	Pickard v Khalaf [2005] NSWSC 1085
HEARING DATE(S):	Monday 24 October 2005
JUDGMENT DATE :	24 October 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	PLEADING STRUCK OUT IN PART; LEAVE TO REPLEAD

CATCHWORDS:	PLEADING - DEFENCE - ISSUE NOT RAISED ADEQUATELY - OBJECTIONABLE PORTIONS STRUCK OUT - COSTS
PARTIES:	Edward Charles Pickard v Simon Khalaf
FILE NUMBER(S):	SC 12682/05
COUNSEL:	D. Charles (Plaintiff) J. Donnellan, solicitor (Defendant)
SOLICITORS:	C.E. Chapman & Co (Plaintiff) L.W. Williams & Associates (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 24 October 2005

12682/05 - EDWARD CHARLES PICKARD v SIMON KHALAF

JUDGMENT

1 HIS HONOUR: This is a motion brought on behalf of the plaintiff in proceedings seeking an order for possession of a property located at Belmore. The defendant, it appears to be common ground, is in occupation of the property. The statement of claim is brought in the name of the registered proprietor. An affidavit received by the solicitors for the defendant only recently shows a source of instructions in a person who is managing the affairs of the plaintiff, who on the evidence before me, is incapable of managing his own affairs. That led to a pleading by way of defence that the plaintiff personally was not a person capable of managing his financial affairs.

2 Whilst that might be true, its relevance in fact to the action is obscure. Mr Donnellan for the defendant has tacitly conceded that had he been in possession of information now in the affidavits concerning tutelage it is unlikely that paragraph 1 of the defence would have been pleaded. That issue, however, seems to me to be a secondary consideration.

3 Pleaded in the defence is a proposition in these terms, "In the alternative (a) the plaintiff has an equitable interest in the said property; (b) the equitable interest is such that it shall end upon the defendant of the plaintiff wherein the defendant will be seized of the fee simple interest of the said property".

4 An affidavit by the defendant's solicitor shows that what apparently was intended to be raised under that defence as pleaded was the existence of some agreements made between the defendant and the plaintiff, one of which was that the defendant could live in the property and upon the plaintiff's death that it would pass to the defendant from the plaintiff by will.

5 No challenge is made to the assertion that, as is currently the situation, the property has been devised by will to the defendant. The plaintiff's position was that the pleading which, to the extent I have recited, does not assert the proposition of present entitlement to occupation and for that reason these proceedings to strike out the defence were brought.

6 It is pointed out that in any event the affidavit of the defendant's solicitor, which I have mentioned does not seek to specify upon what terms and conditions the defendant is to occupy the premises, and it also somewhat cryptically makes reference to the agreement for occupation as being one of a number of agreements. The pleading in its present form is self-evidently defective if it is intended to raise issues such as have been adumbrated in the affidavit. It seems to me then that on any view, the defence needs to be recast.

7 The defence is nevertheless of significant substance to the extent that it makes formal admissions of paragraphs 1 and 2 in the statement of claim. It also makes a formal denial of the matter set out in paragraphs 3 (a), (b) and (c). 3 (a) (b) and (c) in the statement of claim amount to prayers for relief assuming in accordance with the first prayer there is judgment for possession of the land.

8 It seems to me therefore that paragraph 1 of the defence should be struck out and paragraph 5 should be struck out in order to be repleaded so as to raise the issues desired to be contested by the defendant. The defendant should have appropriate leave to replead.

9 That brings me to the vigorously disputed question of costs. The plaintiff argues that by reason of the defects of the pleading, (and I leave aside paragraph 1 of the defence for this purpose) it was necessary to bring this motion in order to make the defendant plead what he really intends to rely upon and therefore should have the cost of the motion. At the very least he should have his costs up until the time of the filing of the affidavit by the defendant. There is considerable force in that posture. There is also, however, to be taken into account the somewhat curious background to the dispute between the parties. The freeholder is, in fact, a person incapable of conducting his own affairs. The affidavit suggests that an agreement was reached (presumably before he became incapable, although this is not a matter upon which I have any evidence) that the defendant would care for him for a period and he apparently asserts that he fulfilled that position.

10 He further asserts that the agreement was that in return for that care he would have a right on someone, on as yet unspecified terms and conditions, to occupy the property and would inherit it upon the death of the plaintiff. These sorts of arrangements between people require very careful examination in any circumstances and I anticipate it will be a difficult matter for some judge to determine in due course. If that indeed was the agreement, it would seem to me to be a matter that ought to be taken into account in deciding where the burden of costs should lie.

11 The outcome of the dispute which I have described will not be known until determination one way or the other of this litigation. In the circumstances I think the most just order is to reserve the question of costs. I had contemplated making the costs costs in the action, but it seems to me that it should be reserved to a judge determining the central issue whether or not costs incurred in these proceedings should in any event lie with one party or the other.

12 The formal orders I make therefore are as follows. On the notice of motion, I order that paragraphs 1 and 5 of the defence filed by the defendant are to be struck out. The defendant has leave to file an amended defence within 28 days of today. The costs of this motion are reserved to the judge determining the action.

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