Russell v Lee [No 2] - [2017] WASC 218

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RUSSELL -v- LEE [No 2] [2017] WASC 218

CORAM: PRITCHARD J

HEARD: 18 JULY 2017

DELIVERED : 18 JULY 2017

FILE NO/S: CIV 3134 of 2016

BETWEEN: SHANA FRANCINNE RUSSELL
First Plaintiff
NERIDA JAYNE PUANGKHAM
Second Plaintiff
AND
FAY EILEEN LEE
First Defendant
JOHN ANTHONY CAMPBELL LEE
Second Defendant

Catchwords:

Practice and procedure - Pleadings - Amendment of pleadings - Whether pleading inadequate - Whether delay in making amendment - Whether amendment made too close to trial - Turns on own facts

Legislation:

Nil

Result:

Application to amend statement of claim allowed

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr M A MacLennan
Second Plaintiff             :     Mr M A MacLennan
First Defendant              :     Mr F A Robertson
Second Defendant         :     No appearance

Solicitors:

First Plaintiff                  :     Bennett + Co
Second Plaintiff             :     Bennett + Co
First Defendant              :     Fort Knox Legal
Second Defendant         :     No appearance

Cases referred to in judgment:

Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
PRITCHARD J:
(These reasons were delivered extemporaneously on 18 July 2017 and have been edited from the transcript.)

This is an application by the plaintiffs to amend the statement of claim (proposed amendments) in accordance with a minute of proposed re‑amended statement of claim dated 18 July 2017 (the Application). In this action, the plaintiffs seek the appointment of an independent administrator to the estate of Mr Ronald William Lee (the deceased).
I propose to grant the Application, and will turn to the orders which should be made in a moment, including orders for further discovery.
The thrust of the proposed amendments is that an administrator would, on the basis of information presently available, or evidence likely to be advanced at trial, consider it necessary to make enquiries as to whether the deceased had the capacity to provide instructions about, or was subject to undue influence in respect of, two matters. Those matters are, first, the deposit of an advance payment made to the deceased by Main Roads Western Australia in respect of the compulsory acquisition of land owned by the deceased (the advance payment), and secondly, the issue of new shares in Lee Bros Pty Ltd, the effect of which is said to have been a very considerable dilution of the interest of Lee Holdings Pty Ltd in Lee Bros Pty Ltd (the share issue).
The proposed amendments are, with respect, not perfectly drafted. However, the submissions made today by counsel for the plaintiffs have made very clear that what the plaintiffs seek to do by the amendments is raise an issue about what further enquiries the administrator would consider necessary, as opposed to inviting the court to make findings about the deceased's capacity, or as to an allegation of undue influence or, indeed, any of the precise factual matters concerning the advance payment or the share issue.
The Application is opposed by the first defendant on the basis of the inadequate pleading of the amendments, the late pleading of the amendments, and perhaps, rather more faintly, the delay by the plaintiffs in making the amendments. I note that the action is listed for trial commencing in five weeks.
The principles in relation to amendments at a late stage in the preparation of a matter prior to trial were set out by Beech J in Hightime Investments Pty Ltd v Lungan [No 2].[1] I have taken those principles into account. I do not propose to set them out for present purposes. They are well known to all.
[1] Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 [50] ‑ [54] (Beech J).
I start by considering the alleged delay by the plaintiffs in bringing the application. I am not persuaded that the delay in seeking the amendments is a reason for dismissing the Application. That is because I am satisfied, having regard to the submissions of counsel and to the affidavit evidence, limited as it is, in relation to the explanation for the delay, that the reason for the delay has largely been the plaintiffs' inability to obtain information in relation to the matters now raised. Information supporting the proposed amendment has only recently come to the attention of the plaintiffs, as a result of the filing of the witness statements on which the defendant seeks to rely at trial.
Turning to the broader considerations of whether the Application should be permitted, I start by considering the impact of the proposed amendments on the parties' preparation for trial. Having regard to the submissions made by counsel for the plaintiffs as to the intended scope of the issues raised by the proposed amendments, I am not persuaded that the amendments to the plaintiffs' claim will have the consequence that the parties will be unable to adequately and properly prepare for trial.
To the extent that discovery might be required as a result of the amendments, it appears from the nature of the documents likely to be sought that such documents, if they exist, will be either wholly in the possession of the first defendant, or possibly in the possession of a bank. It does not appear likely that the documents sought will be of a very wide number or nature. The likely requirement for further discovery in respect of the proposed amendments is therefore, in my view, not a reason to refuse the Application.
As to what further evidence might be required to be obtained in respect of these issues, the plaintiffs' counsel submitted that, by virtue of the nature of the proposed amendments, the plaintiffs' case may be supplemented by further documents. The defendants' position is not yet able to be ascertained, quite understandably, and some strategic decisions will no doubt be required. However, if further evidence is required, in addition to what has been filed so far, nothing that I have heard today from counsel for the first defendant suggests that that evidence is likely to be of such a volume or nature as to make it impossible to adequately prepare for trial in the circumstances.
Turning to the adequacy of the amendments, as I have indicated the pleading is not as perfectly drafted as might be desirable. It is now apparent that the allegations made at proposed paras 20G and 20K of the statement of claim are clearly intended to plead only that there is information available which would suggest to a reasonable administrator that further enquiries would need to be made in relation to the advance payment and the share issue. That pleading is intended to then dovetail with a pleading about the conflict of interest to which the first defendant is claimed to be subject. All of those issues are said to lead to the ultimate conclusion that the first defendant should not be appointed the administrator of the deceased's estate.
The submissions made by counsel today have clarified the nature of the plaintiffs' case. The basis advanced by the plaintiffs for their claim that an administrator would need to seek further information about the deceased's capacity, or undue influence, lies in the particulars to proposed para 20G of the statement of claim. If further information is required to clarify precisely what further enquiries the plaintiffs say that the administrator would need to make, it seems to me that those matters could be resolved by way of a request for particulars by the first defendant to the plaintiff and a provision of those particulars. I do not anticipate that reasonable and sensible counsel preparing for trial should have any difficulty in adequately clarifying those matters, and doing so well in advance of the trial.
In that respect, therefore, I am not persuaded that the proposed amendments are so deficient that they should not be permitted. They are certainly not, in my view, so deficient as to warrant being struck out and, to that extent, the opposition to the amendment cannot be accepted.
The final observation that I would make is that the issues now raised seem very likely to be issues that would arise at some stage and even if the first defendant were to be appointed the administrator of the deceased's estate. There may be a good measure of sense in dealing with these issues now, so that the Court can make a properly informed decision as to whether there is any issue which is likely to call into question whether the appointment of the first defendant as the administrator should be approached with caution. That is not to suggest in any way that I have reached a preliminary view about the plaintiffs' case for the appointment of an independent administrator. But it does reflect the fact that in determining whether either an independent administrator, or the first defendant, should be appointed to administer the deceased's estate, any question of a potential conflict of interest on the part of the first defendant should be identified and addressed, so as to avoid any potential for disputes were the first defendant to be appointed as administrator of the deceased's estate.
In all those circumstances, I am persuaded that the Application should be granted.