Thorpe and Thorpe and Anor - [2011] FamCA 858

FAMILY COURT OF AUSTRALIA

THORPE & THORPE AND ANOR

[2011] FamCA 858

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment - part heard application for summary dismissal

Family Law Act 1975 (Cth) ss 78 and 79(5)
Friar & Friar and Anor [2009] Fam CA 295 Friar & Friar [2011] FamCAFC 71 Bigg & Suzi (1998) 22 FamLR 700; Pelerman & Pelerman [2000] 26 FamLR 505 Doisy & Wilmot-Doisy [2009] FamCAFC 14

APPLICANT:

Ms Thorpe

FIRST RESPONDENT:

Mr Thorpe

SECOND RESPONDENT:

Ms R Thorpe

FILE NUMBER:

CSC

547

2009

DATE DELIVERED:

4 November 2011

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

3 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Benson

SOLICITOR FOR THE 1^ST APPLICANT:

AMR Legal

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Victoire

SOLICITOR FOR THE 1^ST RESPONDENT:

Apels Solicitors & Notary

COUNSEL FOR THE 2^ND RESPONDENT:

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Tree S.C.

Farrellys Lawyers

Orders

The application for summary dissmisssal by the second respondent be adjourned part heard and be listed for continuation of the summary dissmissal hearing at 2.15 pm on Monday 6 February 2012.
On or before 1 December 2011 the wife file and serve on the husband and the second respondent the following:-
(a)A Statement of Claim setting out the precise nature of the wife’s claim or claims agaisnt the second respondent, including but not limited to:-
i. The basis of such claim and or claims, and whether they are made pursuant to an accrued juridiction, Section 78, 79 or Part VIIIAA of the Family Law Act 1975(Cth) or otherwise;
ii. The precise legal basis and nature of the claim or claims and the relief sought in respect of each such claim or claims, (such as contructive trust, express trust etc);
iii. The propositions of law and fact asserted by the wife in respect of each such claim and sufficient particulars to enable the husband and second respondent to identify what the wife alleges against the second resondent, including the issues to be determied in respect of each such claim.
(b)Affidavits setting out the whole of the factual evidence upon which the wife relies in support of the contentions, pleadings and particulars contained in the Statement of Claim.
On or before 23 December 2011 the husband and the second respondent file and serve on the other parties pleadings by way of a defence so that the parties and the Court know exactly what matters are left in dispute.
Leave is given to the husband and/or the second respeondent to file affidavit material on or before 23 December 2011. Such material to include the details of the Will of the second respondent and the arrangements for civil administration of her assets (whether by power of attorney or by a guardianship order or otherwise.
The wife is restrained from filing any further affidavit material and/or alternate or amended statement of claim against the second respondent as and from 2 December 2011, without leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FamCA 858
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Ms Thorpe (the applicant wife), Mr Thorpe (the first respondent husband), and Ms R Thorpe (the second respondent, the husband's mother). The dispute concerned the wife's claim to an equitable interest in real estate owned by the second respondent, which the wife sought to have included in the matrimonial property division. The second respondent applied for summary dismissal of the wife's claims against her. The matter came before Benjamin J in the Family Court of Australia.

The primary legal issues before the Court were whether the wife's claims against the second respondent were so lacking in merit that they should be summarily dismissed, and if not, whether the wife should be required to provide security for costs. The Court was also required to determine what evidence it should consider, specifically whether to have regard to unsworn particulars of claim, and the precise nature of the wife's claims, which had been amended after the summary dismissal application was filed.

Benjamin J reasoned that a court should generally allow a party to reframe pleadings if there are defects but a reasonable cause of action may exist. However, the Court noted that the wife's claims had been particularised twice, and the current claims, filed on 23 September 2011, were the basis for the summary dismissal application. The Court considered whether these claims, which included allegations of constructive trust, promissory estoppel, proprietary estoppel, and unconscionable retention of benefit, were doomed to fail or had no reasonable prospects of success, referencing principles from *Bigg & Suzie* and *Pelerman & Pelerman*. The Court also expressed concern about the wife's submission that it was open to find an equitable interest on some other basis, despite the limitations of her pleadings.

The Court ordered that the second respondent's application for summary dismissal be adjourned part-heard and listed for continuation. Directions were given for the wife to file and serve a Statement of Claim detailing the precise nature and legal basis of her claims against the second respondent, supported by affidavits of factual evidence. The husband and second respondent were to file defences, and leave was granted for them to file affidavit material concerning the second respondent's will and asset administration. The wife was restrained from filing further material without leave, but given leave to seek particulars regarding the second respondent's will and asset administration. Costs of the hearing on 3 October 2011 were reserved.

Orders