Simmons v New South Wales Trustee and Guardian

The appeal concerned an application by the appellant, Father Simmons, for leave to amend his statement of claim against the first respondent, the New South Wales Trustee and Guardian, and the second and third respondents, Mr Henwood and Dorothy Simmons. The primary judge had refused to grant leave to amend the statement of claim, summarily dismissing the application. The appeal was heard by Beazley P, Barrett and Gleeson JJA.

The central legal issues before the Court of Appeal were whether the primary judge erred in refusing to permit cross-examination during interlocutory proceedings, whether the primary judge erred in summarily dismissing the application to amend the statement of claim, and whether the proposed amendments sufficiently pleaded fraud or a personal equity against the second and third defendants, particularly in light of the defence of indefeasibility under s 42 of the Real Property Act. The Court also considered whether the claims were so obviously untenable or groundless that there was a high degree of certainty they would fail if allowed to go to trial, and whether the primary judge had regard to the overriding purpose of facilitating the just, quick, and cheap resolution of the real issues.

The Court of Appeal found that the primary judge had erred in refusing to grant leave to amend the statement of claim as against the first respondent. The Court reasoned that the proposed amendments, when assessed at their highest, did not demonstrate a high degree of certainty of failure. However, the Court held that the primary judge had not erred in refusing leave to amend the statement of claim against the second and third respondents. This was because the proposed amendments did not sufficiently plead fraud, which must be specifically and clearly pleaded with particulars under the Uniform Civil Procedure Rules. Furthermore, personal equities arising under *Barnes v Addy* cannot prevail against indefeasibility under s 42 of the Real Property Act, and such equities require an acknowledgment, agreement, or undertaking from the registered proprietor that they later resile from, which was not adequately pleaded.

The appeal was allowed in part, with the order of the primary judge set aside insofar as it related to the first respondent. Leave was granted to the appellant to amend the statement of claim against the first respondent, with directions for filing and service. The appellant was ordered to pay the second and third respondents' costs in the Court of Appeal, while the appellant's costs against the first respondent were to be the plaintiff's costs in the proceedings below. The appellant was also granted a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal as against the first respondent.