Russel v TAPARIS Pty Ltd - [2004] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RUSSEL -v- TAPARIS PTY LTD & ORS [2004] WASC 238

CORAM: COMMISSIONER BRADDOCK SC

HEARD: 3 NOVEMBER 2004

DELIVERED : 18 NOVEMBER 2004

FILE NO/S: CIV 2251 of 2003

BETWEEN: JULIE MARIE RUSSEL
Plaintiff
AND
TAPARIS PTY LTD (ACN 009 126 096)
First Defendant
CARLTON CHARLES MILLS-EDWARD
Second Defendant
MICHAEL WATTS
Third Defendant

Catchwords:

Procedure - Security for costs - Impecuniosity of plaintiff delay - Strike out statement of claim - Extension of time - Turns on own facts

Legislation:

Corporations Law, s 1335(1)

Rules of the Supreme Court, O 20, r 19(3), O 25, r 1, r 2, r 3

Trade Practices Act, s 52

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Feutrill
First Defendant             :     Mr B D Campbell
Second Defendant         :     Mr B D Campbell
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Halperin Fleming Meertens
First Defendant             :     Mony de Kerloy
Second Defendant         :     Mony de Kerloy
Third Defendant           :     No appearance

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

Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Cherry v Read, unreported; FCA; Library No QG 68 of 1996; 21 November 1996
Cowell v Taylor [1885] 31 Ch D 34
Gardiner v Ray [1999] WASC 140
Sarac v Croatian House Hrvatski Dom (Inc), unreported; FCt SCt of WA; Library No 950675; 12 December 1995
Temwood Holdings Pty Ltd v Oliver [1999] WASC 251
Thune v London Properties Ltd [1990] 1 All ER 972

Case(s) also cited:

Barnes v Saal, unreported; SCt of Qld (Master Horton); 1 February 1991
Blatch v Archer (1774) 98 ER 969
Citicorp Australia Ltd v Cirillo [2003] SASC 204
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241
Idoport v National Australia Bank [2001] NSWSC 744
Jackadda Engineers & Planners Pty Ltd v Watson Holdings Pty Ltd (1992) 8 SR (WA) 358
John Hollywood Pty Ltd v Harwood (1990) 3 ACSR 83
Jones v Dunkel (1959) 101 CLR 298
Muschinski v Dodds (1985) 160 CLR 583
Pacific Acceptance Corporation Ltd v Forsyth (No 2) [1967] 2 NSWR 402
Pearson v Naydler [1977] 3 All ER 531
Re Vandervell's Trusts [1974] Ch 269
Satcom Business Exchange Pty Ltd v BCCC Pty Ltd [2001] WASC 126

COMMISSIONER BRADDOCK SC: This is an application filed on behalf of the first and second defendants in this action on 5 August 2004, in which the following interlocutory orders were sought:
1.That the first and second defendants be granted leave to bring this application.
2.Pursuant to O 20 r 9(1)(a) and (c) the statement of claim be struck out on the grounds set out in the schedule hereto.
3.Within 14 days from the date of this order the plaintiff do give security for the first and second defendants' costs in the action in the sum of $58,873 each by payment of that amount into court, and in the meantime all further proceedings be stayed.
4.The plaintiff pay the first and second defendants' costs of this application in any event.
The "schedule" referred to states that the grounds for the application are contained in a letter from Mony de Kerloy to Halperin Fleming Meertens dated 29 April 2004 and annexed to the affidavit of Sam Aldo De Vita sworn on 5 August 2004 and filed with this application.

Background

The plaintiff filed a statement of claim on 2 December 2003, at which time only the first defendant an entity incorporated in Western Australia had entered an appearance. On 16 December 2003, the first defendant filed a defence, which comprised two paragraphs, amounting to a blanket denial of all the plaintiff's pleaded claims. After orders for substituted service were made, the second defendant filed a memorandum of appearance on 6 April 2004.
There was some correspondence between the solicitors for the plaintiff, Halperin Fleming Meertens and the solicitors acting for the first and second defendants, Mony de Kerloy. On 17 May 2004, at the case evaluation conference, Registrar Powell ordered that any amended statement of claim be filed and served by the plaintiff by 31 May 2004. Further, the Registrar ordered that by 8 June 2004 the first and second defendants either file and serve a defence and any counterclaim or a strike out application in relation to the amended statement of claim. An amended statement of claim was filed on 2 June 2004 and on 30 June 2004. The second document did not differ in any significant material particular from the document filed on 2 June, but was marked to show clearly the amendments from the original 2 December 2003 document. On 9 July 2004, the second defendant filed an affidavit of discovery.
On 10 August 2004, this current application was filed, together with affidavits in support from the second defendant Mr Mills‑Edward, James Alec Simmons, a director of the first defendant and Mr Sam Aldo De Vita, a solicitor and partner in the firm of Mony de Kerloy.
Mr Simmons, in his affidavit, annexes a draft bill of costs and a copy of a title search in the name of the plaintiff. No other factual material is deposed in that affidavit. The draft bill of costs comes to a total of $58,873. The title search dated 5 August 2004 shows that no records were found in the name Julie Marie Russel, the plaintiff.
Mr Mills‑Edward deposes to the same estimated bill of costs and asserts, similarly to Mr Simmons, that "it appears that the plaintiff will be unable to pay my costs if the plaintiff is unsuccessful in her claim because a search with the Department of Land Information indicates that the plaintiff does not own any real property in Western Australia". Mr Mills‑Edward states that he is informed by his solicitors that despite request the plaintiff has failed to provide any evidence of her capacity to pay costs in the event of a successful defence of the action.
Mr Mills‑Edward goes on to give some factual background to this matter. He states that the third defendant and he were acquainted in the years 1994 to 2000 and that in early 2000 the third defendant approached him in relation to the breeding of exotic birds. The third defendant had recently received a significant sum of money which he wished to use for the purposes of investing in a breeding programme. The second defendant suggested that the third defendant place his pay‑out into the account of the first defendant and draw on it to make his investments. The second defendant says that this occurred, the moneys were placed in the first defendant's bank account and that exotic birds were subsequently purchased and delivered to the third defendant in Westfield in the State of Western Australia. The second defendant relates that in April 2000 he was approached by the plaintiff and the third defendant "who were friends". He was informed by the third defendant and the plaintiff that the plaintiff had recently received $37,000 from a life insurance policy. After discussions, the second defendant agreed with the plaintiff to facilitate the payment "of the plaintiff's $37,000 pay‑out into the first defendant's bank account as a means of protecting the plaintiff's money" [par 13]. The second defendant says that the plaintiff decided to proceed with "her investment in the breeding of exotic birds" and that "the plaintiff was aware and agreed that the investment was for a period of at least 10 years". He goes on to say that the funds were transferred and that he never received any payment of any kind from the other parties.
According to the second defendant, in April 2000 the moneys were used to purchase a pair of scarlet macaws from New South Wales which were delivered to the third defendant in Westfield. Subsequently the plaintiff demanded her money back in October 2000. The second defendant then indicates that the third defendant was, in November 2000, excluded from his premises where the birds were kept by reason of matrimonial difficulties and a restraining order. The second defendant had not heard from the plaintiff for two years until the service of the writ. He asserts that he did not at any time hold himself out to the plaintiff as an employee, officer or agent of the first defendant.
The final paragraph of his affidavit is the only paragraph giving any information relevant to the question of the timing of the application. In par 24 he states that due to work commitments he has been out of the country and uncontactable by his solicitors approximately every other month for two or three weeks at a time. He goes on to say that "I have proceeded with all possible expediency to instruct my solicitors to file this application to strike out the statement of claim and for security for costs".
The affidavit of Mr De Vita sets out some of the chronology of the proceedings and annexes some correspondence between solicitors Mony de Kerloy and Halperin Fleming Meertens from 19 April 2004 to 9 July 2004. The first document by way of facsimile is dated 19 April 2004 and the defendants' solicitors in it advise the plaintiff's solicitor that they are in the process of writing a detailed letter objecting to the statement of claim as then filed and requesting that no steps be taken in relation to default judgment in the interim. The detailed letter is dated 29 April 2004 and is the letter which is referred to in the schedule to the application as comprising the particulars of the objection to the statement of claim.
At this point, I note that this document pre‑dates the amendment of the statement of claim which in part resulted from the submissions made in that letter. Whilst it appeared in argument that the balance of the letter was relied upon in relation to the strike out application, the manner of particularising the objections required for the purposes of the court and the manner in which the solicitors might discuss the issues in correspondence are not identical. It is regrettable that the precise objections taken were not formulated specifically for the purposes of the application itself.
The next letter annexed to Mr De Vita's affidavit is a fax dated 10 May 2004 from Mony de Kerloy to Halperin Fleming Meertens which states:
"We have carried out a property title search in respect of your client and that search reveals that your client does not own any property in Western Australia. Accordingly, we cannot see how your client would be able to satisfy any costs order made in favour of our client against your client.
We put you on notice that our client intends to make an application for security for costs.
Unfortunately, until your client's statement of claim is amended, or until determination of our client's proposed strike out application, our client will not be in a position to file the security for costs application as until such time we will be unable to evaluate the likely costs of the litigation."
By a letter dated 12 May 2004 the plaintiff's solicitors responded to the defendants' letter of 29 April and its criticisms of the statement of claim. Essentially, the plaintiff maintained her pleadings in relation to contract, debt, negligence, misleading and deceptive conduct and restitution, but proposed to amend the statement of claim in relation to matters of breach of trust and set out those proposed amendments. In relation to the foreshadowed application for security for costs the plaintiff's solicitors stated:
"As poverty is not of itself a basis for ordering security your proposed application has no chance of success and in the event it is made our client shall seek her costs in relation to the same to be paid forthwith and on an indemnity basis".
On 9 June 2004, after the amended statement of claim was filed on 2 June 2004 the defendants' solicitors wrote to the plaintiff's solicitors dealing with the form in which the amendments had been delineated and stating:
"In order for us to take our clients' instruction in respect of a strike out application we ask that you file and serve a further amended statement of claim with the appropriate corrections."
Those corrections would appear to have been effected in the statement of claim filed on 30 June 2004. By a letter dated 9 July 2004, from the defendants' solicitors to the plaintiff's solicitors, receipt was confirmed and the defendant stated:
"We reiterate our views as set out in our letter dated 29 April 2004 and are instructed by our client to file an application to strike out your client's statement of claim".
The letter concluded by stating that they were instructed to file an application for security for costs.

The application for security for costs

The application is brought under O 25 of the Rules of the Supreme Court. By O 25 r 1:
"No order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him".
Rule 2 sets out a number of grounds for the making of the order. They fall under three main headings, namely, where the plaintiff:
(1)is ordinarily resident outside, or is about to depart from, the jurisdiction, or enjoys within the jurisdiction some immunity from the normal processes of execution;
(2)is insolvent or has previously failed to pay costs awarded against him in relation to substantially the same subject matter; or
(3)has in the past vexatiously brought litigation against the same or some other defendant.
By r 3, the granting of security is in the discretion of the court. There are three matters of which the court shall take account, being:
(a)the prima facie merits of the claim;
(b)what property is within the jurisdiction to satisfy any order for costs against the plaintiff; and
(c)whether the normal processes of the court would be available to enforce any order for costs made against the plaintiff.
It is well established that, on an application under O 25, the court has an unfettered discretion and the grounds for ordering security are not limited to those set out in r 2. The wording of the order has been remarked to give "a hint as to the basis upon which the court should deal with such an application": Sarac v Croatian House Hrvatski Dom (Inc), unreported; FCt SCt of WA; Library No 950675; 12 December 1995 per Rowland J (with whom Kennedy ACJ and Pidgeon J agreed).
On the present application it is not suggested that the plaintiff falls specifically within any of the categories set out in r 2. The defendants acknowledged that pursuant to r 1 the mere fact of poverty does not justify the grant of a order for security, but that is a relevant consideration: Thune v London Properties Ltd [1990] 1 All ER 972 at 980. The defendants, in their written submissions, and in argument sought, by analogy to applications brought under s 1335(1) of the Corporations Law to assert that because the defendants had limited information concerning the plaintiff's circumstances the burden shifted to the plaintiff, to rebut their suggestion of impecuniosity. The defendants stressed that there was no material filed in evidence on the application by the plaintiff.
In addition to the fact that the plaintiff is not registered as the proprietor of any real property in the State of Western Australia, and had failed to answer the defendants' enquiry, the defendants also referred to par 13 quoted above of the affidavit of the second defendant in support of the application. The defendants relied upon that paragraph as showing that the plaintiff had arranged her financial affairs in an attempt to take advantage of the situation and gain the benefits of litigation without having to bear the risk of any costs order in the event of failure of her action.
The defendant referred to the decision of Cherry v Read, unreported; FCA; Library No QG 68 of 1996; 21 November 1996. The factual circumstances in that case were significantly different. The plaintiff in that action had made arrangements or rearrangements of his finances so as to ensure that the fruits of his endeavours were not exposed to the hazards of litigation. The issue decided by the court, which comprised Black CJ, Sackville and Finn JJ, in upholding the decision of the Judge at first instance, was that there was no justification to limit the circumstances in which a court may order an individual to provide security for costs to cases where the denuding of assets, or the deliberate organisation of affairs to avoid acquiring assets, occurs after proceedings have been commenced or are in contemplation.
The defendant also relied upon the defendants' view of the merits of the action, the alleged delay in issuing of the writ, the fact that there was "no suggestion that security would stifle the action" or that the impecuniosity was caused by the defendants. Mr Campbell laid considerable emphasis on the fact that the defendants had done what they could to ascertain the financial position of the plaintiff. He also made the submission that there was no undue delay in bringing the application for security for costs.
Mr Feutrill for the plaintiff referred to the authorities relied upon by the defendants. He pointed out that they were principally concerned with applications for security for costs brought under s 1335 of the Corporations Act 2001, which was a specific jurisdiction distinct from O 25. Further, he submitted that those applications were brought in significantly different contexts. He referred to the second defendant's affidavit and the reference [in par 13] to the payment of the sum of $37,000 into the first defendant's bank account as "a means of protecting the funds". This was submitted to be no evidence of any arrangement to place assets out of the reach of the court in the sense seen in the authorities referred to by the defendant. Mr Feutrill pointed out that the second defendant's affidavit contained facts inconsistent with the defence filed and evidenced some arrangement or participation as alleged by the plaintiff. The defendants' application was, in the submissions of the plaintiff, misconceived and contrary to well‑established principle. He referred to Cowell v Taylor [1885] 31 Ch D 34 at 38 and the rule at common law that poverty is no bar to a litigant. This policy is reflected in O 25 r 1. Whilst maintaining that the plaintiff did not see there was any basis for the application, Mr Feutrill took the point that the application was not made expeditiously, certainly by the first defendant and to some considerable extent by the second defendant. The correspondence in relation to any suggestion of any application for security for costs was concluded on 12 May 2004 and no application was made until 10 August 2004. He also took in issue with the quantum of security sought.
In considering the defendants' application, it is pertinent to ask the question "Why is there a need for security for costs?". The defendants appear to have first raised the issue, in correspondence on 10 May 2004, upon having received the results of a title search in the name of the plaintiff. There is no evidence as to why such a search was made at that particular time. From the fact that there is no real property registered in the plaintiff's name the defendants drew the conclusion that the plaintiff would not have assets sufficient to meet any order for costs should her action fail. This assumption cannot be logically supported. There was no other evidence placed before the court on this application to show that the defendants have any other basis to apprehend that the plaintiff has limited means, substantial debts or otherwise is lacking in resources.
The plaintiff is a natural person, and the courts have over a long period guarded the rights of such persons to sue, even if they are impecunious. Hence the provision of O 25 r 1. The defendants' argument that par 13 of the second defendant's affidavit indicates some form of arrangement to protect assets from creditors or costs orders cannot be sustained. The meaning of the expression "as a means of protecting the funds" is far from clear in that context and raises more questions than it answers. There are certainly a number of competing inferences which might be drawn from the statement. There is no other evidence that would tend to suggest any form of financial arrangement such as are referred to in the authorities. There is no evidence to suggest that the plaintiff is not resident within the jurisdiction, is about to depart from the jurisdiction, is bankrupt or has been a vexatious litigant. It would therefore appear that the normal processes of the court would be available to enforce any order made, although it is impossible to assess what property within the jurisdiction might be available to satisfy any order for costs.

The defendants sought to place an onus upon the plaintiff to satisfy the defendants of her financial position. The defendants' prayed in aid cases on the threshold question under s 1335 of the Corporations Act, but these do not assist: Temwood Holdings Pty Ltd v Oliver [1999] WASC 251 at [4]. This approach, if taken to its logical conclusion, would place an obligation on any natural person plaintiff who was not the registered owner of real property in Western Australia to account for their financial position to the defendant in any action should that request be made. This is not the law or practice in Western Australia.
I am also of the view that there has been significant delay in bringing this application in the context of these proceedings. The solicitors have engaged in correspondence over an extended period concerning the statement of claim, which was originally served on 2 December. In relation to the first defendant, a period of eight months elapsed prior to the filing of the application for security. In relation to the second defendant the issue was first raised on 10 May 2004. The solicitors at that point, in a letter of that date, asserted that they were not going to be in a position to file a security for costs application until the amended statement of claim was filed "as and until such time we will be unable to evaluate the likely costs of the litigation". The final form of the statement of claim was filed on 30 June, although, for practical purposes, the defendants were aware of the position taken by the plaintiff in relation to the form of the claim when the improperly marked document was filed on 2 June 2004. The parties have proceeded to discovery and inspection. Whilst an application for security may be made at any stage of proceedings, it is well‑established that application should be made promptly.
In the circumstances, due to the view I take of the merits, little turns upon the question of delay. There is no evidence before the court that the plaintiff is impecunious. That fact that the plaintiff is not the registered owner of real property in Western Australia is but one matter which might or might not indicate the state of the plaintiff's financial affairs. That circumstance alone, in my view, does not place onus upon the plaintiff to satisfy the defendants of her financial standing. If it is assumed that the plaintiff is a woman of modest means, suing as a natural person where none of the considerations set out in O 25 r 2 are applicable, then on general principles there would be no reason to place any barriers in the way of her access to the court: O 25 r 1; Cowell v Taylor (supra). There is no suggestion but that the plaintiff sues for her own benefit. Further, the second defendant who knew the plaintiff personally, at least for a limited period, has not provided any other evidence that would suggest any other basis for having doubts about her financial standing.
The merits of the plaintiff's case are relevant under O 25 r 3(a). Whilst there may be criticisms of the way in which her claim is pleaded, to which I will return, the claim is not obviously lacking any foundation. The second defendant confirms by his affidavit that moneys were paid by the plaintiff into the first defendant's bank account, although the circumstances and purposes of such payment may be in dispute. A detailed examination of the merits is not appropriate on this application, although there may be occasions where the strength of one party's case is decisive.
Accordingly I do not think in the circumstances it is in the interests of justice that an order for security for costs should be made and I would therefore dismiss the application.

The strike out application

The defendants require leave to bring the application to strike out the plaintiff's statement of claim due to the fact that the application was filed some three weeks after the time limited by O 20 r 19(3) of the Rules of the Supreme Court to bring such an application. This is the delay based upon the second filing of the amended statement of claim referred to above. In actuality, the substance of the amended statement of claim was clearly apparent from the document filed on 2 June 2004, which leads to a delay of about two months.
The only material by way of explanation for the delay to which Mr Campbell for the defendants ultimately pointed is contained in par 24 of the affidavit of the second defendant. There he says that he had been out of the country and uncontactable for significant periods. He states that he had proceeded with all possible expediency to instruct his solicitors to file this application. The second defendant does not address the facts with anything like the particularity that ought to be accorded in an application where the leave of the court is sought to extend time. Mr Simmons, a director of the first defendant, in his affidavit does not touch upon the question of the passage of time at all. Mr De Vita does not deal with any difficulties occasioned whether by the absence of the second defendant or otherwise in meeting the time limits set by the Rules of the Court.
Submissions were made orally on behalf of the defendants that there had been ongoing conferral about the statement of claim and the issues had not been capable of being resolved. However, there is no evidence as to precisely how any aspect of conferral or the inability to contact the second defendant operated to cause a failure to meet the time requirements. In my view, it is significant that the final letter annexed to Mr De Vita's affidavit from the defendants' solicitors to the plaintiff's solicitors dated 9 July 2004 states that they "are instructed by our client to file an application to strike out your client's statement of claim". That statement was made within the time period if taken to run from 30 June 2004. Thus it would appear that the defendants' solicitors were instructed to file such an application within time. There is no explanation for the failure so to do.
Before returning to the application for an extension of time, I will say something about the merits of the application itself. From the terms of the application, it is to be taken that the defendants seek to strike out the entirety of the statement of claim. By incorporating their letter dated 29 April 2004 as the grounds for the application in the schedule to the filed application, the defendants might be taken to have overlooked the amendment that had been made following upon their submissions to the plaintiff. In his oral submissions Mr Campbell raised the proposition as a basis for the objection that this was a commercial arrangement and that therefore there was no need for, or room for, a trust. In relation to the trust alleged to arise under the Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 principle, the submission was made that the purpose had been fulfilled when the money was used to purchase the birds referring to the evidence in the second defendant's affidavit. Thus the submission was that there was no scope for a trust. This of course is to enter into a consideration of competing facts on the evidence.
Otherwise, the submissions both written and oral of the defendants focused upon the contractual aspects of the claim being contained in pars 4 ‑ 15 of the statement of claim. The objections are, when extracted from the letter dated 29 April 2004, may be summarised as:
(a)inconsistency;
(b)lack of certainty as to the parties to the contract;
(c)no benefit to the second defendant;
(d)that par 4B is inconsistent with par 5 of the statement of claim; and
(e)par 13(A) is alleged to fail to plead any request to the first defendant to make repayment.
An agreement is pleaded and particulars given in par 4 of the statement of claim as follows:
"4By an agreement made on or about January 2000 between the plaintiff and the second defendant, in his capacity as an employee, officer or agent of the first defendant the first defendant agreed to enter into a scheme involving the breeding of exotic parrots.
PARTICULARS OF AGREEMENT
(A)The agreement was oral and consisted of a conversation between the plaintiff and the second defendant and the third defendant.
(B)The substance of the conversation was to the effect that the plaintiff was to invest a sum of money being $38 000 some or all of which she had received as an inheritance ('the Inheritance') in a scheme involving the breeding of exotic parrots ('the Scheme') which would be conducted according to the following arrangements:-
(1)The plaintiff would use the inheritance money to purchase breeding pairs of exotic parrots ('the Parrots');
(2)The purchase of the parrots would occur as follows:-
(a)The plaintiff would deposit the inheritance into a bank account of the first defendant;
(b)The second defendant would cause the first defendant to purchase the parrots and engage in the sale of their offspring ('the Chicks').
(3)The third defendant would take possession of the Parrots and be responsible for their care, security and well being;
(4)The third defendant would oversee the breeding of the Parrots and the care and raising of the Chicks;
(5)The third defendant would pay all costs associated with the care and breeding of the Parrots;
(6)The Chicks would in due course be sold and the proceeds from the sale of the Chicks would be distributed as follows:-
(a)Profits from the sale of one Chick per calendar year to be distributed to the third defendant;
(b)The balance of the profits to be distributed to the plaintiff.
(7)The plaintiff would be entitled at any time to ask for and be repaid the Inheritance;
(8)All parties would at all times be involved in the decision making of the scheme;
(9)The Parrots would be insured and video cameras were to be installed into aviaries which were already installed on the third defendant's property;
(10)The parties would enter into a written contract recording the terms of the agreement.
5There were express terms of the agreement to the effect that:
(a)the plaintiff promised to pay the Inheritance to the first defendant;
(b)the first defendant promised to use the Inheritance to the Parrots for the purposes of the Scheme;
(c)the first defendant promised to repay the plaintiff the Inheritance on demand; and
(d)the first defendant promised to pay the plaintiff the net profits from the Scheme less the net profit on the sale of one Chick per annum."
The statement of claim then goes on, in pars 6 ‑ 10, to give various alternative permutations and combinations of parties to the contract. The plaintiff then pleads that she on 7 February 2000 paid her funds to the first defendant pursuant to the agreement and that none of the defendants used the inheritance to purchase the parrots. At par 13 the plaintiff pleads that she has requested on a number of occasions that the defendants repay the inheritance and gives particulars. There follow claims of breach of the agreement set out in par 14 in the corresponding alternatives to pars 6 ‑ 10 and at par 15 of the statement of claim again in the corresponding alternatives. The defendants' complaints in relation to that aspect of the statement of claim is that either it must be void for uncertainty or that there is a degree of embarrassment in the defendants not being able conveniently to plead to the various permutations.
Whilst the form of the pleading might be considered inelegant, I am not persuaded that the manner of pleading evidences any fundamental uncertainty. The conclusions to be drawn from an interpretation of those facts will be for the court upon hearing the evidence. They have been set out as alternatives. There is, on that basis, no inconsistency in the facts which have been pleaded.
The complaint in relation to the lack of consideration moving to the second defendant does not in my view vitiate the whole pleading. It is true that there is no obvious direct benefit to the second defendant alleged in the statement of claim. It might be argued that the provision of funds to the first defendant at the time conferred some benefit upon the second defendant or that the facilitating of the activity of parrot breeding by the third defendant did likewise. The second defendant may plead to this.
The defendants also complain that there is no specific allegation of a request made to the first defendant to repay the funds such lacks being alleged to undermine the claim in contract. However, par 13 contains a specific plea that the plaintiff requested on a number of occasions that the defendants repay the inheritance. The particulars given relate to conversations between the plaintiff and the second and third defendant but that, in my view, does not sustain the complaint, given that the first defendant is not a natural person and that the plaintiff has pleaded in par 4 that in January 2000 the second defendant was acting in a representative capacity. Whether that is so is a matter to be determined on the evidence at trial.
The statement of claim pleads various other causes of action, in the alternative. Each of them might arguably find a basis on the facts. The plea in negligence might be the subject of an application for further and better particulars. That is no reason to strike down the pleading. The form of the pleading of misleading and deceptive conduct is, for reasons similar to those relating to the pleading in contract, somewhat inelegant, but nevertheless when followed through capable of being responded to appropriately and thus not embarrassing for present purposes.
Some criticism might be made for example of par 38 which reads:
"By reason of the facts pleaded herein the second defendant and third defendant were persons involved in the first defendant's contravention of section 52 of the Trade Practices Act",
without specifying with more particularity which facts pleaded are relied upon. The objection taken to pars 41 onwards, being the claim by way of resulting trust or/and restitution has been criticised by the defendants on grounds that if it were a commercial transaction there is no room for a trust to arise and that thereby the pleas are inconsistent. However, as the plaintiff points out, if for some reason no contract is established and the money had been received without benefit intended, a resulting trust might arise on that basis.
It follows from this that if I were to extend time limited for the filing of the application, I would not be disposed to strike out the entirety of the pleading and would grant leave to amend in relation to minor matters only. However, I do not consider that this is the course that I should adopt. As has been stated recently by Justice Steytler in Gardiner v Ray [1999] WASC 140 at [33] "the time limit is one to which more than lip service should be paid". Whilst it might be argued in this case that the delay has been a period of three weeks, the reality is a much more extended time period. For the first defendant, who was served with the original statement of claim shortly after 2 December 2003 and pleaded to that statement of claim, many months have elapsed without an application to strike out being brought. That matter is relevant, whether or not there has been subsequent correspondence between the parties' solicitors. The plaintiff concedes that there has been a degree of conferral from the time that the second defendant filed the memorandum of appearance. The correspondence shows that instructions had been given within time for a strike out application to be made, and there is no explanation why that was not proceeded with. This is not a case in which the claim is so manifestly without merit that the litigation process should be short‑circuited to avoid time and expense.
Accordingly, I do not propose to exercise the discretion to extend time for the application and the application is dismissed.