Thorpe and Thorpe and Anor

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.