Secure Parking (WA) Pty Ltd v Wilson - [2011] WASC 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SECURE PARKING (WA) PTY LTD -v- WILSON [2011] WASC 212

CORAM: LE MIERE J

HEARD: 14 FEBRUARY 2011

DELIVERED : 24 AUGUST 2011

FILE NO/S: CIV 2192 of 2002

BETWEEN: SECURE PARKING (WA) PTY LTD
Plaintiff
AND
ALFRED KARL WILSON
First Defendant
PARKING ASSET MANAGEMENT PTY LTD
Second Defendant
JOAN OLIVE WILSON
Third Defendant
LAWRENCE LESLIE WILSON
Fourth Defendant

FILE NO/S :CIV 2363 of 2010

BETWEEN :SECURE PARKING (WA) PTY LTD
Plaintiff
AND
ALFRED KARL WILSON
First Defendant
PARKING ASSET MANAGEMENT PTY LTD
Second Defendant
JOAN OLIVE WILSON
Third Defendant
LAWRENCE LESLIE WILSON
Fourth Defendant
PARKING ASSET MANAGEMENT (WA) PTY LTD
Fifth Defendant

Catchwords:

Practice and procedure - Application to amend statement of claim - Estoppel by omission - Relevant principles - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 68

Result:

Orders made

Category: B

Representation:

CIV 2192 of 2002

Counsel:

Plaintiff:     Mr G R Hancy
First Defendant             :     Mr C L Zelestis QC
Second Defendant         :     Mr C L Zelestis QC
Third Defendant           :     Mr C L Zelestis QC
Fourth Defendant          :     Mr C L Zelestis QC

Solicitors:

Plaintiff:     Talbot & Olivier
First Defendant             :     Tottle Partners
Second Defendant         :     Tottle Partners
Third Defendant           :     Tottle Partners
Fourth Defendant          :     Tottle Partners

CIV 2363 of 2010

Counsel:

Plaintiff:     Mr G R Hancy
First Defendant             :     Mr C L Zelestis QC
Second Defendant         :     Mr C L Zelestis QC
Third Defendant           :     Mr C L Zelestis QC
Fourth Defendant          :     Mr C L Zelestis QC
Fifth Defendant            :     Mr A Metaxas

Solicitors:

Plaintiff:     Talbot & Olivier
First Defendant             :     Tottle Partners
Second Defendant         :     Tottle Partners
Third Defendant           :     Tottle Partners
Fourth Defendant          :     Tottle Partners
Fifth Defendant            :     Metaxas & Hager

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

Asher v Secretary of State for the Environment [1974] 1 Ch 208
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Owston Nominees [No 2] Pty Ltd v Clambake Pty Ltd [2011] WASCA 76
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268
Secure Parking (WA) Pty Ltd v Wilson [No 2] [2009] WASCA 78

LE MIERE J: In CIV 2192 of 2002 the defendants, who are also the first to fourth defendants in CIV 2363 of 2010, and who I will sometimes refer to as the original defendants, apply for an order that the action against them be struck out on the grounds that it is embarrassing and vexatious, discloses no reasonable cause of action, may prejudice, embarrass or delay the fair trial of the action or is otherwise an abuse of the court's process. In CIV 2363 of 2010 the original defendants seek an order that the action against them be struck out and the fifth defendant, Parking Asset Management (WA) (PAM (WA)), seeks an order that the action against it be struck out.

Background

The first defendant, who I will refer to as Mr Wilson, managed and operated a car park business under the name Panda Parking at a car park at The Esplanade, Perth, which it leased from Nullagine Investments Pty Ltd (Nullagine). The lease was for a term of five years, commencing on 19 October 1995. It contained an option to renew for two further terms of five years each. In March or April 1996 the plaintiff company, Secure Parking (WA) Pty Ltd (Secure Parking), approached Mr Wilson with a proposal to purchase an interest in Panda Parking. Secure Parking proposed that Mr Wilson be employed as general manager of the business and be offered the option to purchase 50% of the issued shares in Secure Parking. After putting the proposal, Secure Parking asked Mr Wilson to approach Nullagine to see whether it would consent to the assignment of the lease to Secure Parking, as was required by the terms of the lease. Negotiations between the parties as to the terms of any assignment of the lease followed. A deed of assignment was then executed by Secure Parking and Mr Wilson. It was not executed by Nullagine.
At around the same time, Mr Wilson, at the request of Secure Parking, drew up and signed a letter dated 21 June 1996 and addressed to Secure Parking (the June 1996 letter). In the June 1996 letter Mr Wilson confirmed and agreed that until the transfer of the lease of the car park was formally consented to by the lessor, Nullagine, he granted to Secure Parking all rights to receive all income and revenue from the car park's operation as if the lease had been formally assigned to Secure Parking provided that $150,000 was paid. By the letter Mr Wilson further agreed that on receipt of that sum, Secure Parking would be entitled to direct him to manage the car park according to its desires and best interests and he confirmed and warranted that he would comply with its directions.
The purchase price was paid on 25 June 1996 and Secure Parking took over the management and operation of the car park. On 26 June 1996 Secure Parking and Mr Wilson entered into a service agreement by which they agreed that Mr Wilson was to be employed by Secure Parking as general manager. Mr Wilson was also granted an option to purchase 50% of the issued shares in Secure Parking which he exercised on 19 March 1999. Mr Wilson exercised the option to renew the lease for a further term commencing on 19 October 2000. However, the question of assignment of the lease was never finally resolved by the parties and there was a falling out between Mr Wilson and Secure Parking. Mr Wilson informed Secure Parking that he did not wish to proceed with the assignment of the lease. In 2002 Nullagine proposed a new lease to Parking Asset Management (PAM). On 16 August 2002 Mr Wilson resigned his employment as general manager under the service agreement and as a director of Secure Parking.

Secure Parking commences CIV 2192 of 2002

On 22 August 2002 Secure Parking commenced CIV 2192 of 2002 against the original defendants, that is, Mr Wilson, PAM, Joan Wilson and Lawrence Wilson. Secure Parking claimed relief in relation to a number of car parks, including The Esplanade car park. Secure Parking claimed an injunction restraining the defendants from, among other things, entering into any form of agreement for the lease or other right to acquire the use of the car park. Secure Parking also sought an order for specific performance by Mr Wilson of an agreement made on or about 21 June 1996 partly orally and partly in writing that Secure Parking be entitled to direct Mr Wilson and the other defendants that he or they manage The Esplanade car park according to the desires and best interests of Secure Parking for the balance of the term of the lease held by Secure Parking. Secure Parking also sought damages against the defendants as a result of the breach by Mr Wilson of his fiduciary duty as a director of Secure Parking which breach was carried out for the benefit of PAM and the third defendant. Injunctions restraining the defendants from entering into any agreement for the lease of The Esplanade car park were granted and extended until trial and subsequently varied by consent.

Secure Parking commences CIV 1074 of 2003

In 2003 Secure Parking commenced CIV 1074 of 2003 against Mr Wilson and Nullagine. PAM was not a party to the action. Secure Parking alleged that in June 1996 Mr Wilson orally agreed with Secure Parking to assign the lease to it in consideration of the sum of $150,000 paid to Mr Wilson by the Secure Parking Group (being the name given to a group of shareholders in Secure Parking) on behalf of Secure Parking. Secure Parking alleged that the terms of the oral agreement were confirmed in the June 1996 letter. Secure Parking claimed a declaration that the lease had been assigned by Mr Wilson to Secure Parking, that Nullagine had consented to the assignment and that Secure Parking was entitled to occupy the car park for the term of the lease including the second option to renew. Alternatively, Secure Parking claimed an order that Mr Wilson execute a document of exercise of the option of renewal of the lease to be renewed on 18 October 2005 upon such terms as the court may direct and deliver such exercise of the option to Nullagine so as to effect the exercise of such option.

Judgment in CIV 1074 of 2003

I delivered judgment on 14 October 2005 dismissing Secure Parking's action. My findings are summarised by the Court of Appeal in Secure Parking (WA) Pty Ltd v Wilson [No 2] [2009] WASCA 78 [10]:
(a)Nullagine did not consent to an assignment of the Lease to Secure Parking [88].
…
(d)Mr Wilson did not assign the Lease to Secure Parking [99].
(e)Secure Parking's estoppel case was not made out [115].
(f)Nullagine did not impliedly consent to Mr Wilson assigning the Lease to Secure Parking, and Nullagine did not waive its right to object to an assignment [121].
(g)Secure Parking's right under the [June 1996 letter] to direct Mr Wilson to manage the car park according to its desires and best interests did not include, either as an express or an implied term, the right to direct Mr Wilson to exercise the options of renewal under the Lease [125], [128] - [132].
(h)The rights granted by Mr Wilson under the [June 1996 letter] were confined to rights to receive the income and revenue from the car park's operation [126].
I also found that other issues raised by Secure Parking were without merit but it is not necessary to refer to them further.

Appeal from CIV 1074 of 2003

On 4 November 2005, by appeal CACV 141 of 2005, Secure Parking appealed from the judgment in CIV 1074 of 2003. Secure Parking's substituted grounds of appeal asserted that the trial judge erred in law in failing to hold that Mr Wilson was obliged to give notice of the exercise of his option to renew the lease and erred in law in failing to hold that Nullagine was obliged to give effect to such notice of exercise of option by granting a renewed lease to Mr Wilson for a term of five years from 19 October 2005.
The Court of Appeal stated that Secure Parking's appeal was confined to challenging the trial judge's findings and decision in relation to the proper construction of the June 1996 letter, the alleged obligation of Mr Wilson to give a notice exercising the second option to renew and the alleged obligation of Nullagine to give effect to such a notice: Secure Parking (WA) Pty Ltd v Wilson [No 2] [2009] WASCA 78 [15].
The majority allowed the appeal on the basis of the proper construction of the June 1996 letter including, in particular, the implied duty of each party to a contract to cooperate in the performance of contractual obligations and the implication of a term to the effect that Mr Wilson would, at Secure Parking's direction, exercise each option to renew: Secure Parking (WA) Pty Ltd v Wilson [No 2] [20]. The majority of the court held that Secure Parking was entitled to direct, and did direct, Mr Wilson to give notice of exercise of the option to renew the Lease for a term of five years from 19 October 2005. Nullagine was obliged to give effect to a notice of exercise of the second option to renew given by Mr Wilson in accordance with the Lease and the agreement to extend the latest date for exercising the option. By failing or refusing to exercise the second option to renew pursuant to Secure Parking's direction, Mr Wilson breached the agreement embodied in the letter: Secure Parking (WA) Pty Ltd [No 2] [18].

Car park leased to PAM and sold

As I have said, I delivered judgment on 14 October 2005. That was within the time for the exercise of the second option for renewal. On appeal Secure Parking contended that if the appeal was allowed, Secure Parking should be restored to the position in which it would have been if, on 14 October 2005, I had ordered Mr Wilson to exercise the option. However, by the time of the hearing of the appeal third party rights had intervened. By a deed of lease dated 30 January 2006 Nullagine granted a lease of the car park to PAM. Subsequently, Nullagine sold its fee simple estate to Benballey Pty Ltd (Benballey), which became the registered proprietor on 13 October 2006. Benballey granted two mortgages over the land and, on 13 October 2006, the mortgagees registered their securities. Between 13 October 2006 and 3 August 2007, Benballey sold the land to Pakwest Pty Ltd (Pakwest) which became the registered proprietor on 3 August 2007. Pakwest granted a mortgage over the land and, on 3 August 2007, the mortgagee registered its security.

Relief granted in CACV 141 of 2005

The grant of a lease by Nullagine to PAM led to PAM being added as a party to the appeal in September 2006. On appeal, Secure Parking submitted that this lease should be brought to an end by Nullagine or its successors in title. Secure Parking referred to item 16.4(a) of the First Schedule to the deed (the break clause), which permitted Nullagine or its successors in title to give notice that had the effect of terminating the lease in the event that 'as a consequence of any Court action between the Lessor and any previous lessee of the Leased Premises, the Lessor was required by the Court to grant a lease of the Leased Premises (or any part) to that lessee or grant that lessee occupation or management rights with respect to the Leased Premises (or any part)'. Secure Parking sought an order for a renewed lease and orders that acknowledged its rights to manage the car park during the term of the renewed lease.
The Court of Appeal held that Secure Parking was not entitled to any such relief against Nullagine. The Court of Appeal made declaratory orders to the effect that Secure Parking was entitled to direct, and did direct, Mr Wilson to give notice of the exercise of his option to renew the Lease for a term of five years from 19 October 2005 and Nullagine was obliged to give effect to a notice of exercise of the second option to renew given by Mr Wilson
The Court of Appeal held that by failing or refusing to exercise the second option to renew pursuant to Secure Parking's direction, Mr Wilson breached the agreement embodied in the June 1996 letter: Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268. The Court decided that damages would be an adequate remedy for Secure Parking against Mr Wilson. It was neither open nor appropriate to grant Secure Parking any restitutionary remedies in the appeal or on remitter to the trial judge. Buss JA, with whom Martin CJ agreed, stated his reasons as follows:
First, Mr Wilson did not in fact exercise the second option to renew and, as a result, the Lease expired on 18 October 2005. The option is not now capable of exercise. Secondly, there is no evidence that Mr Wilson is beneficially entitled to any subsisting leasehold estate or interest in the subject premises. Thirdly, the deed of lease dated 30 January 2006 between Nullagine, Parking Asset Management and Lawrence Wilson was executed more than three months after the Lease had expired and the interlocutory injunctions had been varied, by consent, to release those parties from the restraints affecting them in relation to, and any dealings with, the Esplanade Car Park. Fourthly, the provisions of the deed of lease dated 30 January 2006 are materially different from the provisions of the Lease. Fifthly, the 'break clause' in item 16.4 of the First Schedule to the deed of lease dated 30 January 2006 does not create any rights in or for the benefit of Secure Parking, Mr Wilson or, indeed, Parking Asset Management. It merely confers on Nullagine the right to terminate the deed of lease if Nullagine is required by any court to grant a lease of the leased premises to a previous lessee (relevantly, Mr Wilson or, if there had been an assignment to Secure Parking with Nullagine's consent, Secure Parking). In this appeal, Secure Parking has not made out any basis for this court to require Nullagine or its successors in title to exercise the right of termination conferred by item 16.4. Sixthly, in any event, third parties have obtained interests in the land on which the building containing the Esplanade Car Park is constructed. Pakwest is the current registered proprietor of the land and the reversioner under the deed of lease dated 30 January 2006, and other entities hold registered mortgages. Neither Pakwest nor the mortgagees were parties to the Supreme Court proceedings or this appeal [152].
The Court of Appeal remitted the action to me to assess damages. The damages have not yet been assessed.

CIV 2192 of 2002

On 4 August 2010 Secure Parking amended its statement of claim in CIV 2192 of 2002. It is convenient at this stage to say something about CIV 2192 of 2002.
CIV 2192 of 2002 was commenced in August 2002 by Secure Parking against Mr Wilson, his parents, Joan and Lawrence Wilson and PAM. Secure Parking pleaded that it had various rights and interests in relation to a number of car parks including The Esplanade car park and including the right to direct the management of the car park. Secure Parking gave particulars of the facts giving rise to those rights as follows. Firstly, Mr Wilson held the 'formal' lease in his own name. Secondly, Mr Wilson, on or about 21 June 1996 granted to the Secure Parking group the right to direct Mr Wilson in the management of the car park according to their desires and best interests in consideration for the payment to him of $150,000 by the Secure Parking group. Thirdly, subsequently to the grant of the management rights in 1996 Mr Wilson signed an assignment of lease in relation to the car park in favour of Secure Parking. Fourthly, by letter dated 6 January 1997 Mr Wilson agreed to appoint the plaintiff a management contract for the term of the lease pending formal consent by Nullagine to the assignment of the lease. Fifthly, by the June 1996 letter initialled by its manager, Nullagine agreed on the terms for its consent to an assignment of the lease. Sixthly, pursuant to those arrangements Secure Parking had managed the car park since January 1997 and continued to manage the car park. Secure Parking pleaded that in breach of his fiduciary and statutory duties to Secure Parking, while holding office as a director of Secure Parking and while managing its business in Western Australia, Mr Wilson improperly attempted to divert a portion of Secure Parking's then existing business in Western Australia for the personal advantage of himself and the other defendants.
Secure Parking made other claims including a claim that the defendants, with intent to injure it, conspired to use information obtained by Mr Wilson in his position as a director of Secure Parking and manager of its business in Western Australia to divert to the advantage of themselves a portion of Secure Parking's business in Western Australia. Secure Parking claimed an order that the defendants be restrained from entering into any agreement, arrangement or understanding for the lease, licence or other right to acquire the use of the car park. Secure Parking claimed an order for specific performance by Mr Wilson of an agreement made on or about 21 June 1996 and 6 January 1997, partly in writing and partly by conduct, that Mr Wilson grant Secure Parking a management contract for the car park to manage the car park according to the desires and best interests of Secure Parking for the balance of the term of the lease held by Mr Wilson. Secure Parking claimed other relief including damages.
As I have said, an interlocutory injunction was granted against the original defendants to prevent them from entering a new lease with Nullagine. After judgment in CIV 1074 of 2003 Secure Parking consented to the interlocutory injunction being varied to release PAM and Joan and Lawrence Wilson as from 18 October 2005 insofar as the interlocutory injunctions related to the car park. CIV 2192 of 2002 was not proceeded with during the resolution of CIV 1074 of 2003 and the appeal.

CIV 2192 of 2002 amended statement of claim

On 4 August 2010 Secure Parking made substantial amendments to the statement of claim in CIV 2192 of 2002. The defendants summarise the effect of the amendments as pleading allegations to the following effect:
(a)Nullagine granted a lease of the Esplanade car park to Wilson: [2(c)];
(b)by an agreement made on or about 21 June 1996, Wilson agreed to sell Secure Parking his car park business at the Esplanade car park and to manage this business at the direction of Secure Parking; Wilson agreed to provide for Secure Parking to have the benefit of his rights under the lease for the balance of the original term and for any renewed terms, even if assignment of the lease did not occur: [8];
(c)as a result of the agreement made on or about 21 June 1996, and a service agreement entered between Wilson and Secure Parking, Wilson held the benefit of his rights under the lease (including the options) on trust for Secure Parking, and owed fiduciary duties to Secure Parking not to use his position as a director or employee of Secure Parking to advantage himself or any third party, or to acquire the benefit of the options: [24];
(d)in July 2002, Wilson negotiated with Nullagine to have Nullagine grant a lease of the Esplanade car park to PAM in substitution for himself: [12];
(e)in August 2002, Wilson resigned as manager of the Esplanade car park business, and he and his parents attempted to exclude Secure Parking from the Esplanade car park: [13]‑[16];
(f)by reason of the matters which occurred in July and August 2002, Wilson breached his duties as trustee and fiduciary owed to Secure Parking; and PAM and Wilson's parents knowingly participated in those breaches of duty: [25]‑[26];
(g)in July 2005, Wilson chose not to comply with a direction from Secure Parking to exercise the second option contained in his lease from Nullagine, and instead negotiated with Nullagine for a new lease to be granted to PAM (WA) which occurred in January 2006: [17]‑[19], [21]‑[22];
(h)Wilson operated the Esplanade car park for his own benefit or for the benefit of his parents or PAM or PAM (WA) between October 2005 (when the lease expired) and January 2006 (when a new lease was granted to PAM (WA)): [20];
(i)in furtherance of breaches of trust and fiduciary duty, Wilson deliberately refrained from exercising the second option in his lease with Nullagine: [28]; an unnamed fifth defendant (presumably intended to be PAM (WA)) participated in breaches of trust and fiduciary duty by Wilson in respect of Wilson's failure to renew the second option in his lease with Nullagine: [27];
(j)Wilson's breaches of trust and fiduciary duty have caused Secure Parking loss and damage, in that Secure Parking lost the benefit of the term of the second option in Wilson's lease and an alternative lease of the car park: [29.1];
(k)the defendants and PAM (WA) have obtained a benefit from Wilson's breaches of trust and fiduciary duty: [29.2].
On the basis of these allegations, Secure Parking claims a declaration that the PAM (WA) lease is held on trust for Secure Parking and an order that Joan and Lawrence Wilson cause PAM (WA) to assign the PAM (WA) lease to Secure Parking. Secure Parking pleads that Joan and Lawrence Wilson are each the sole director and secretary of PAM (WA). Secure Parking also seeks equitable compensation and an account of benefits received by the defendants from operating the car park from 19 October 2005, being the date on which the third term of 5 years would have commenced if the second option had been exercised: amended statement of claim [30].
The amendments do not include any claim for damages for breach of contract. However, [8(c)] and [8(d)] effectively plead the construction of the agreement evidenced by the June 1996 letter as determined by the Court of Appeal, [29.1] alleges that the conduct of the defendants caused Secure Parking to lose the benefit of the second option and compensation is sought for that loss: [18] ‑ [20].

CIV 2363 of 2010

In 2010 Secure Parking commenced CIV 2363 of 2010 against Mr Wilson, PAM, Joan Wilson, Lawrence Wilson and PAM (WA). Secure Parking's statement of claim in CIV 2363 of 2010 is essentially the same as its amended statement of claim in CIV 2192 of 2002. The only substantial difference is that PAM (WA) is a defendant in CIV 2363 of 2010 but not in CIV 2192 of 2002. Secure Parking did not apply to join PAM (WA) as a defendant in CIV 2192 of 2002 because its claim against PAM (WA) is based on events that occurred after the issue of the writ in CIV 2192 of 2002.
In this action, as in CIV 2192 of 2002, Secure Parking claims against Mr Wilson on the basis that he held the car park lease on trust for Secure Parking and owed Secure Parking fiduciary duties: statement of claim [24]. In [25] of the statement of claim Secure Parking alleges acts by Mr Wilson which were in breach of his duties as trustee and fiduciary. In [27] Secure Parking alleges that PAM (WA) knowingly assisted and procured Mr Wilson's breaches of trust and fiduciary duty. Secure Parking seeks a declaration that PAM (WA) holds the lease on trust for Secure Parking and an order requiring Joan and Lawrence Wilson and PAM (WA) to cause the PAM (WA) lease to be assigned to Secure Parking. Secure Parking also seeks an order requiring the defendants to account for benefits received from operating the car park from 19 October 2005 and to pay the sum found due to Secure Parking. Secure Parking also seeks equitable compensation.

Defendants' challenge to amended statement of claim in CIV 2192 of 2002

The original defendants have applied to disallow the plaintiff's amendments to the statement of claim in CIV 2192 of 2002 on two grounds. First, they submit that the amended claim constitutes an abuse of the court's process by attempting to re‑litigate matters which have, or should have, been determined. These matters concern the failure of Mr Wilson to exercise a second option to extend the lease of the car park in 2005. The defendants submit that Mr Wilson's failure to exercise a second option to extend the lease in 2005 was the subject of CIV 1074 of 2003 and Secure Parking should have claimed in that action the relief arising from Mr Wilson's failure to exercise the option which it claims in the amended statement of claim in CIV 2192 of 2002. Furthermore, the defendants submit that the relief which is now sought by Secure Parking is inconsistent with the judgment in CACV 141 of 2005. That is because the Court of Appeal determined that Secure Parking was entitled to damages for the loss it suffered as a result of not obtaining a lease of the car park from 19 October 2005 but not any proprietary or restitutionary relief arising from the failure of Mr Wilson to exercise the option to extend the lease whereas in its amended claim in CIV 2192 of 2002 Secure Parking claims that Mr Wilson has an interest in the lease dated 30 January 2006 granted to PAM (WA).
The second ground of the defendants' application to disallow the plaintiff's amendments to its statement of claim in CIV 2192 of 2002 is that the original defendants have no interest in the lease granted to PAM (WA) and hence there is no basis for the relief claimed.
At the hearing of this application the defendants submitted that the lease dated 30 January 2006 by which Nullagine granted a lease of the car park to PAM was a lease for a term of six years. As I have said, Nullagine sold the fee simple to Benballey which subsequently sold the land to Pakwest. The evidence before the Court of Appeal was to the effect that the second transfer was registered without any encumbrance or reservation of the rights of the lessee under the 2006 lease. The defendants submitted that, on that evidence, as the lease was for a term exceeding five years and was unregistered, the effect of s 68 of the Transfer of Land Act 1893 (WA) was that the lease did not survive the transfer. The plaintiff indicated that it proposes to amend the statement of claim in CIV 2363 of 2010 to plead that, from about March 2007, one or more of the defendants have managed and operated the car park under a lease or contract made with each successive owner of the land. Consequently, the defendants accepted that the disallowance application may be determined upon the assumption that the plaintiff's statement of claim in each action includes a plea to that effect, such that an issue is raised by Secure Parking as to whether one or more new leases or contracts had been granted to one or other of the defendants from about March 2007 enabling them to operate the car park. The defendant submitted, in other words, that the present application for disallowance can be approached on the assumption (without any concession) that there is an arguable basis in fact for such a plea. Accordingly, it is not necessary for me to say anything further about the second ground on which the defendants initially relied to disallow the plaintiff's amendments to its statements of claim.

Comparison of claims in CIV 1074 of 2003 and CIV 2192 of 2002 as amended

The defendants submit that, in substance, the amendments to the statement of claim in CIV 2192 of 2002 seek to impose equitable liability upon the defendants in respect of breaches of trust and fiduciary duty by Mr Wilson, in which the other defendants are alleged to have participated. The trust or fiduciary duties to which Mr Wilson is alleged to have been subject are said to have arisen by reason of the following matters:
(a)Wilson was a director of Secure Parking from June 1996 until 16 August 2002 and was employed by Secure Parking, while being the lessee under the lease (re‑amended statement of claim paragraph 2);
(b)the lease contained two options for renewal (paragraph 7);
(c)the terms of the agreement with Secure Parking evidenced by the letter dated 21 June 1996 (paragraph 8);
(d)the fact that Secure Parking managed and operated the car park between June 1996 and 25 October 2005 (paragraph 9);
(e)the fact of an employment agreement by which Secure Parking employed Wilson as general manager of the car park (paragraph 10); and
(f)the exercise of the first option by Wilson (paragraph 11).
The defendants submit, and I accept, that in substance each of these matters was alleged in CIV 1074 of 2003 and the appeal CACV 141 of 2005:
(a)Wilson was a director of the Secure Parking from June 1996 until 16 August 2002 and was employed by Secure Parking, while being the lessee under the lease (paragraphs 2 and 6(f));
(b)the lease contained two options for renewal (paragraph 4);
(c)the terms of the agreement with Secure Parking evidenced by the letter dated 21 June 1996 (paragraphs 5 and 11);
(d)the fact that Secure Parking managed and operated the car park between June 1996 and 25 October 2005 (paragraph 9(c) and (d));
(e)the fact of an employment agreement by which Secure Parking employed Wilson as general manager of the car park (paragraph 6(f)); and
(f)the exercise of the first option by Wilson (paragraph 7(g)).
In the amended statement of claim in CIV 2192 of 2002 Secure Parking alleges that Mr Wilson breached his trust or fiduciary duties by failing to exercise the option and causing Nullagine to grant a lease of the car park premises to PAM. Mr Wilson's failure to exercise the option was a central issue in Secure Parking's claim in CIV 1074 of 2003 and CACV 141 of 2005. In the Court of Appeal Buss JA, with whom Martin CJ agreed, found that Mr Wilson wrote to Nullagine proposing that Nullagine grant a lease of the car park to PAM and that at that time Mr Wilson was still the general manager under the service agreement with Secure Parking and a director of Secure Parking. Buss JA further stated that the letter and its contents were not disclosed by Mr Wilson to the other directors of Secure Parking before the letter was sent: Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268 [45], [46].
The equitable duties which Secure Parking alleges in CIV 2192 of 2002 that Mr Wilson owed to Secure Parking arise from facts which were litigated and determined in CIV 1074 of 2003 and CACV 141 of 2005. The claim in CIV 2192 of 2002 that Mr Wilson committed breaches of equitable duty is based on the claim that when he was a director and general manager of Secure Parking Mr Wilson refused to exercise the option to renew the lease on behalf of Secure Parking and caused a new lease to be granted to PAM. Those are matters that were alleged by Secure Parking in CIV 1074 of 2003 and were found as facts at both first instance and on appeal in CACV 141 of 2005.
In the Court of Appeal Secure Parking sought relief which would have required Nullagine to terminate the lease with PAM (WA) and required Mr Wilson to hold the first lease for the benefit of Secure Parking. The Court of Appeal refused that relief. Secure Parking seeks to achieve a similar result in CIV 2192 of 2002 by aid of a declaration that the lease in favour of PAM (WA) is held upon trust for Secure Parking but requires the court to find that Secure Parking has a beneficial interest in the lease granted to PAM (WA) which is contrary to the decision of the Court of Appeal.

Estoppel by omission

The principle of estoppel by omission concerns a claim which could have been raised in the first action, but was not, and is then sought to be raised in a subsequent action between the same parties or their privies. Parties to litigation are required to bring forward their whole case and may be estopped from raising a matter which could and should have been litigated in prior proceedings. The principle, commonly referred to as Anshun estoppel, will not apply unless the matter subsequently relied upon was so relevant to the subject matter of the determined action that it would have been unreasonable not to rely on it: Owston Nominees [No 2] Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 [125] (McLure P, with whom Pullin and Murphy JJA relevantly agreed) citing Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 603 ‑ 604. The purpose of the principle is to avoid the possibility of inconsistent decisions and promote the efficient use of court resources and time.
In Port of Melbourne Authority v Anshun Gibbs CJ, Mason and Aickin JJ said:
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac (70).
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
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The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By 'conflicting' judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity (602 - 604).
Anshun estoppel was considered by the Court of Appeal in DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16. There had been an earlier action (Mills action) in which the plaintiff had successfully claimed damages against the appellant and the respondent for personal injury caused by an unloader. The appellant and respondent each issued contribution notices against each other. The trial judge apportioned liability which was subsequently varied on appeal to 60% to the respondent and 40% to the appellant. Subsequently the respondent commenced proceedings (the current action) against the appellant for damages for the damage to the unloader. The respondent relied upon a contract that had not been alleged in the Mills action. The appellant unsuccessfully applied for summary judgment on grounds including that the respondent was precluded from bringing the current action by Anshun estoppel. The Court of Appeal dismissed the appeal. Newnes AJA, with whom McLure JA agreed, reviewed the authorities and concluded:
In my view, in the light of the authorities to which I have referred, the questions in this case are whether the respondent's claim in the current action is based on substantially the same facts as the contribution proceedings in the Mills action and could have been brought in those proceedings in the Mills action, and whether it was unreasonable for the respondent not to have brought it in those proceedings. An important consideration is the likelihood of conflicting judgments.
The claim for indemnity made in the current action was not, of course, a matter that arose directly out of the contribution proceedings in respect of Mr Mills's claim for damages for personal injury, but I understood it was accepted by both parties to this appeal that it could have been brought by the appellant in the Mills action under O 19 of the rules of court.
It is clear, however, that Anshun estoppel does not operate simply because a party is asserting a cause of action which could have been, but was not, raised in a previous proceeding in which that party was asserting a different cause of action based on substantially the same facts against the same party. The touchstone is reasonableness; the question is whether it was unreasonable for the party asserting the cause of action in the second proceeding to have refrained from raising it in the earlier proceeding.
Whether it was unreasonable not to bring the claim in the earlier proceedings depends upon an examination of all the relevant circumstances, focussing on the issue of reasonableness. There can be no hard and fast rules. As the High Court pointed out (602) in Anshun, a party may legitimately refrain from litigating an issue in earlier proceedings for a variety of reasons such as expense, the importance of the particular issue, and motives extraneous to the actual litigation.
In the present case, the learned primary judge concluded that there was a triable issue as to whether it was unreasonable for the respondent not to raise in the Mills action its current claim for indemnity in respect of the damage to the unloader. I do not consider that in so concluding her Honour was in error [84] - [88].

Was it unreasonable not to prosecute the present claim in CACV 141 of 2005?

Secure Parking could have claimed in CIV 1074 of 2003 or CACV 141 of 2005, that Mr Wilson held the benefit of his rights under the lease, including the options, on trust for Secure Parking and owed fiduciary duties to Secure Parking not to use his position as a director or employee of Secure Parking to advantage himself or any third party or to acquire the benefits of the options to renew the lease. Secure Parking could have claimed that Mr Wilson breached his duties as trustee and fiduciary owed to Secure Parking by not exercising the second option in the lease with Nullagine and causing PAM to obtain a lease of the car park. Secure Parking could have claimed in CIV 1074 of 2003 or CACV 141 of 2005 the effective relief it now claims in CIV 2192 of 2002. Secure Parking could have added PAM, Joan Wilson and Lawrence Wilson as defendants or respondents and claimed against them the relief it now seeks in CIV 2192 of 2002. Indeed, PAM was added as a party to the appeal. However, the test is not that additional claims that 'could and therefore should' have been litigated in the first action will be barred. The test is whether the matter relied upon to found the new claims in CIV 2192 of 2002 was so relevant to the subject matter of CIV 1074 of 2003 and CACV 141 of 2005 that it was unreasonable not to rely on it.

In CACV 141 of 2005 Secure Parking argued that Mr Wilson was obliged to, but did not, exercise the option to renew the lease and that the court should grant relief that included an order for a renewed lease for the benefit of Secure Parking. The claims now brought by Secure Parking in CIV 2192 of 2002 are based on the allegation that Mr Wilson refused to exercise the option to renew the lease when he was obliged by duty to do so and a claim for relief including that the current lease of the car park be assigned to Secure Parking. The claim now brought by Secure Parking, and the facts upon which it is based are closely connected to, and relevant to, the subject matter of CIV 1074 of 2003 and CACV 141 of 2005. Having regard to the nature of Secure Parking's claims in CIV 1074 of 2003 and CACV 141 of 2005 and their subject matter it would be expected that Secure Parking would raise the claims it now makes in CIV 2192 of 2002 and thereby enable the relevant issues to have been determined in the appeal. The matters now sought to be relied upon by Secure Parking in CIV 2192 of 2002 are so relevant to the subject matter of CACV 141 of 2005 that it was unreasonable not to rely upon them in the hearing of the appeal.
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment: Port of Melbourne Authority v Anshun (603) (Gibbs CJ, Mason and Aickin JJ). The relief now claimed by Secure Parking in CIV 2192 of 2002 would be inconsistent with the order of the Court of Appeal in CACV 141 of 2005. The Court of Appeal held that it was not appropriate to grant Secure Parking any restitutionary remedies in the appeal or on remitter to the trial judge and ordered that Mr Wilson pay Secure Parking damages to be assessed. The damages are the damages resulting from Mr Wilson's failure to exercise the option to renew the lease and thereby cause Secure Parking to lose the benefit of the lease. A declaration that PAM (WA) holds the current lease on trust for Secure Parking and an order that the lease be assigned to Secure Parking would be inconsistent with the rights declared and the judgment and orders made by the Court of Appeal in CACV 141 of 2005.
As I have said, the defendants agree that the disallowance applications may be determined upon the assumption that the plaintiff's statement of claim in each action includes a plea to the effect that, from about March 2007, one or more of the defendants have managed and operated the car park under a lease or contract made with each successive owner of the land. Nevertheless, the defendants submit that such a case as to one or more new leases or contracts having been obtained from about 2007, by reason of pleaded causes of action which arise from and depend upon the agreement found by the Court of Appeal, if sustained at trial, would not remove or overcome the inconsistency which lies at the heart of the defendants' abuse of process submission. The defendants submit that the order for payment of damages relates to the loss suffered by Secure Parking as a result of it not having obtained the leasehold interest for five years from 19 October 2005 which the Court of Appeal held it was entitled to under the relevant agreement: Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268 [150]. The defendants submit that it would be inconsistent with that order for damages for the loss of the benefit of such a lease for Secure Parking also to obtain a constructive trust over a lease or contract giving rights to operate the car park itself for some part of the period to which the order for damages relates or equitable compensation in lieu. I accept that submission. The order for damages will enable Secure Parking to recover any loss of profits it suffered as a result of not obtaining a five year lease of the car park from 19 October 2005. Having obtained an order for that relief, it is not open to Secure Parking to seek relief which, if granted, would give it either a leasehold or other interest for some or all of that five year period, by which it would itself obtain an opportunity to earn some of the profits the subject of the damages order, or another compensatory remedy for the same loss, such as equitable compensation.

Secure Parking's submissions

Notwithstanding the matters I have referred to, Secure Parking submits that the circumstances justify Secure Parking having refrained from litigating the issues it now raises in CIV 2192 of 2002, in CIV 1074 of 2003 or CACV 141 of 2005.
Secure Parking submits that it was not unreasonable for the claim for breach of fiduciary duty not to be prosecuted in CIV 1074 of 2003 or CACV 141 of 2005 on a number of grounds. First, it is submitted that the claim for breach of fiduciary duty was made in an earlier and pending action, rather than in a later and new 'second' action. The defendants concede that CIV 2192 of 2002 was on foot at the time of the trial in CIV 1074 of 2003 and the hearing of the appeal in CACV 141 of 2005. Furthermore, CIV 2192 of 2002 was referred to during the course of both the trial in CIV 1074 of 2003 and the hearing of the appeal in CACV 141 of 2005. However, the defendants submit that the fact that CIV 2192 of 2002 was mentioned and acknowledged does not mean that the conduct of Secure Parking in not raising and relying upon in CIV 1074 of 2003 and CACV 141 of 2005 the matters now sought to be relied upon in CIV 2192 of 2002 is not unreasonable. A party cannot, in effect, reserve its right to pursue a claim at a later time if it is unreasonable to do so. Secure Parking did not attempt to raise or rely upon in CIV 1074 of 2003 and CACV 141 of 2005 the matters it now seeks to rely upon in CIV 2192 of 2002. Furthermore, Secure Parking's claims now made in CIV 2192 of 2002, if they succeed, will result in a judgment which conflicts with the judgment in CACV 141 of 2005.
Secure Parking further submits that the defendants permitted the amendment to be made and the contract claimed to be argued at trial (although the cause of action arose after the writ was issued in CIV 1074 of 2003) without requiring that Secure Parking bring the pending claim for breach of fiduciary duty in CIV 2192 of 2002 before the court to be determined at the same time as the new claim for breach of contract. This submission does not substantially add to Secure Parking's first argument. There is no basis for finding that the defendants condoned or acquiesced in Secure Parking reserving the matters now sought to be relied upon and pursuing them in a separate action after the determination of CIV 1074 of 2003 and CACV 141 of 2005, albeit that the separate action had already been commenced.
Next Secure Parking submits that at the trial in CIV 1074 of 2003 the defendants and their legal advisors knew that CIV 2192 of 2002 was pending. This adds nothing to Secure Parking's contentions already referred to. As I have said, there is no basis for finding that the defendants condoned or acquiesced in Secure Parking relying upon the matters now sought to be relied upon in CIV 2192 of 2002 in proceedings separate from CIV 1074 of 2003 and CACV 141 of 2005, including in an action that had already been commenced.
Secure Parking further submits that CIV 2192 of 2002 was discussed by the trial judge in CIV 1074 of 2003 and there was no suggestion that there was an inconsistent or parallel claim that a reasonable plaintiff should have included in CIV 1074 of 2003. The duty of a trial judge is to determine the matters before him or her in the action being tried. The question of whether or not an Anshun estoppel would bar Secure Parking from pursuing the allegations now being relied upon in CIV 2192 of 2002 did not arise.
Secure Parking further submits that Secure Parking applied to substitute new grounds of appeal in CACV 141 of 2005 and the submissions in support of the application refer to the pending claim for breach of fiduciary duty in CIV 2192 of 2002. That does not add anything of substance to Secure Parking's earlier arguments. Whether or not Secure Parking would be barred from the Anshun estoppel principle in pursuing its allegation of breach of fiduciary duty in CIV 2192 of 2002 and the relief it might seek was not an issue in CACV 141 of 2005.
Secure Parking submits that the Court of Appeal in CACV 141 of 2005 acknowledged that CIV 2192 of 2002 were related proceedings that were 'still pending'. That does not add anything of substance to Secure Parking's earlier argument. The question of whether Secure Parking would be barred by Anshun estoppel from relying upon the matters now sought to be relied upon in CIV 2192 of 2002 and seek the relief it now seeks was not an issue raised or determined in CACV 141 of 2005.
Secure Parking further submits that although there are some common elements of fact the causes of action are different and the substratum of pertinent facts differs significantly for each claim, the parties are not the same and different remedies have been sought. I do not accept the thrust of that submission. It is not decisive that the causes of action are different. The omission to plead a claim may contribute to the existence of conflicting judgments though they may not be pronounced on the same cause of action: Port of Melbourne Authority v Anshun (603 ‑ 604) (Gibbs CJ, Mason and Aickin JJ). Anshun estoppel may apply where the parties in the two actions are not the same: Asher v Secretary of State for the Environment [1974] 1 Ch 208. PAM and Joan and Lawrence Wilson could have been joined as parties to CIV 1074 of 2003 or CACV 141 of 2005. In CIV 2192 of 2002 Secure Parking claims that PAM and Joan and Lawrence Wilson agreed with Mr Wilson that he would not exercise the option to renew the lease and Joan Wilson would cause a company controlled by Mr Wilson, Joan or Lawrence Wilson to enter into a new lease of the car park. Secure Parking further claims that the defendants negotiated with Nullagine for the grant of a new lease to a company to be controlled by one or more of them and on 30 January 2006 Nullagine granted a lease to PAM. All of those matters were, or could have been, argued in CACV 141 of 2005.
Next Secure Parking submits that the claim for breach of contract was introduced into CIV 1074 of 2003 by an amendment to the statement of claim by a minute dated 28 July 2005 and the minute was given effect less than two weeks before trial which commenced on 15 August 2005. That does not detract from the fact that Secure Parking could have relied in CACV 141 of 2005 on the matters now sought to be relied upon in CIV 2192 of 2002. Secure Parking's case on appeal, and in particular its claim for relief, was based on events which had occurred since judgment was delivered in CIV 1074 of 2003 and which are sought to be relied upon in CIV 2192 of 2002.
Secure Parking next submits that the claim for breach of contract arose before the writ was issued in CIV 2192 of 2002 and could not have been brought in that action. That is not to the point. The point is that Secure Parking could and should have brought the claims it now seeks to rely upon in CACV 141 of 2005.
Next Secure Parking submits that damages have not yet been assessed in CIV 1074 of 2003. It is submitted that 'there has simply been a determination of right'. Secure Parking submits that it has not moved for judgment in an assessed amount and there is no judgment that can be enforced and satisfied or against which a remedy in equity would be inconsistent. That is not an answer to the point that if Secure Parking succeeds in the claims it now makes in CIV 2192 of 2002 and obtains the relief it is seeking that would give rise to inconsistent judgments. For the purposes of Anshun estoppel, 'conflicting' judgments include judgments which are contradictory in that they appear to declare rights which are inconsistent in respect of the same transaction: Port of Melbourne Authority v Anshun (604) (Gibbs CJ, Mason and Aickin JJ). There has been a judgment that Secure Parking is entitled to damages for the loss of the benefit of the lease resulting from Mr Wilson not exercising the option to renew the lease. That is inconsistent with a declaration or order that Secure Parking has an interest in the lease of the car park granted to PAM (WA).
The relief now sought by Secure Parking in CIV 2192 of 2002 includes a claim for equitable compensation. That claim is for compensation for Mr Wilson not exercising the option to renew the lease and thereby causing Secure Parking to lose the benefit of the lease. That is the same matter which gives rise to Secure Parking's right to damages as ordered by the Court of Appeal. It is unreasonable for Secure Parking not to have claimed equitable compensation in CIV 1073 of 2003 and CACV 141 of 2005 and to now bring that claim in CIV 2192 of 2002. Secure Parking should have pursued all remedies resulting from Mr Wilson's failure to exercise the option.
Secure Parking submits that there would be no inconsistency in the event that it obtained a finding that Mr Wilson breached a fiduciary duty owed to it. Secure Parking submits that it would have been possible for it to pursue in one action claims for breach of contract and breach of fiduciary duty and a finding of entitlement for breach of contract would not have precluded a finding of breach of fiduciary duty and entitlement to equitable relief. I do not accept that argument. Secure Parking could have pursued claims for breach of contract and breach of fiduciary duty and a finding of breach of contract would not have precluded a finding of breach of fiduciary duty nor the grant of equitable relief. However, the court would not have granted the equitable relief sought in CIV 2192 of 2002 and the damages in favour of Secure Parking ordered by the Court of Appeal in CACV 141 of 2005.
Finally, Secure Parking submits that the restitutionary order that was sought unsuccessfully following the successful appeal in CACV 141 of 2005 was not sought as a remedy on a cause of action and no relevant order was made. Secure Parking sought the restitionary order in the course of CACV 141 of 2005. I do not accept that argument. Secure Parking now seeks to rely upon matters that are so relevant to the subject matter of CACV 141 of 2005 that it is unreasonable not to have relied upon them in the appeal. Furthermore, for the reasons already given the claims made by Secure Parking in CIV 2192 of 2002 if successful will result in a judgment which conflicts with the judgment of the Court of Appeal in CACV 141 of 2005.

Anshun estoppel ‑ conclusion

For the reasons given it is an abuse of process for Secure Parking to pursue the matters now sought to be relied upon in CIV 2192 of 2002. The defendants should not be vexed with further proceedings for the same matters, the litigation should come to an end and inconsistency in court judgments should be avoided.

CIV 2363 of 2010

It is an abuse of process for Secure Parking to pursue its claims in CIV 2363 of 2010 for the same reasons that it is an abuse of process to pursue its amended claims in CIV 2192 of 2002.

Conclusion

For the reasons stated, the amendments to the statement of claim in CIV 2192 of 2002 and the claims in CIV 2363 of 2010 are an abuse of the court's process. I would hear the parties as to the orders which should be made to give effect to these reasons.