Timms v Hamersley
[2005] WASC 205
TIMMS -v- HAMERSLEY [2005] WASC 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 205 | |
| Case No: | CIV:2080/2004 | 6 SEPTEMBER 2005 | |
| Coram: | MASTER SANDERSON | 13/09/05 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| B | |||
| PDF Version |
| Parties: | CORAL JOYCE TIMMS STEPHEN EDWARD HAMERSLEY |
Catchwords: | Practice and procedure Application for leave to amend statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Nil Bruce v Odhams Press Ltd [1936] 1 KB 697 Packard v Transport Trading Agency Co Pty Ltd (1912) 14 WALR 191 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
STEPHEN EDWARD HAMERSLEY
Defendant
Catchwords:
Practice and procedure - Application for leave to amend statement of claim - Turns on own facts
Legislation:
Nil
Result:
Leave refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : In person
Defendant : Mr D L Jones
Solicitors:
Plaintiffs : In person
Defendant : Holyoak-Roberts Legal
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bruce v Odhams Press Ltd [1936] 1 KB 697
Packard v Transport Trading Agency Co Pty Ltd (1912) 14 WALR 191
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
(Page 3)
1 MASTER SANDERSON: This is the plaintiffs' application for leave to amend the statement of claim in terms of a minute of amended statement of claim dated 22 August 2005 ("the minute"). The writ in this matter was issued on 23 August 2004. A statement of claim was endorsed on the writ. On 13 June 2005, the defendant applied to strike out that statement of claim. On 2 August 2005, I struck out the statement of claim and gave the plaintiff leave within twenty eight days to file and serve a substituted statement of claim. The present minute was filed pursuant to that order. The writ and original statement of claim were issued by the plaintiff only but the minute was filed by the plaintiff and three co-plaintiffs.
2 Even taking together the two statements of claim filed by the plaintiffs - the statement of claim endorsed on the writ and the minute - it is somewhat difficult to work out the nature of the plaintiffs' cause of action. However, some facts do emerge. The defendant is said to be the executor and trustee of the Will of Ada Caroline Anne Hamersley and the Will of Edward Draffin Hamersley. The plaintiff is the legally adopted daughter of Edward and Ada Hamersley and the defendant is their legally adopted son. The co-plaintiffs are the children of the first-named plaintiff. It is alleged that the co-plaintiffs were beneficiaries under the Will of Ada Hamersley. It is not clear whether the plaintiff was a beneficiary under that Will nor is it clear whether any of the plaintiffs were beneficiaries under the Will of Edward Hamersley.
3 It is alleged that Ada Hamersley died on 17 July 1989 and Edward Hamersley died on 5 March 1991. It is further alleged that when the defendant eventually took up his appointment as executor of the Will of Edward Hamersley, he concluded that the net value of the estate was $1,374. Most of these facts are drawn from the original statement of claim. Unfortunately, they are not picked up in the minute.
4 Making sense of the claim beyond this point, is a little difficult. It is alleged that in November 1986, the defendant made an application to be appointed as the manager of the estate of Edward Hamersley on the basis that he was an incapable person. It is further alleged that such an appointment was made on 13 April 1987. As I understand the pleadings, it is said that in May 1986, Edward Hamersley signed a deed of conveyance of transferring of certain farming property to Mount Mackie Pty Ltd. The consideration for that conveyance was $250,000. Quite what became of those funds is not clear from either the original statement of claim or the minute. The plaintiffs seem to allege that at the time of signing the conveyance, Edward Hamersley was of unsound mind. It is not said what consequences flow from that fact.
(Page 4)
5 It is clear that the present minute is not in a proper form. It does not set out in chronological fashion the material facts upon which the plaintiffs seek to rely. The minute alleges negligence on the part of the defendant and then sets out 9 paragraphs which detail the complaints the plaintiffs have against the defendant. Nowhere is it alleged what duty of care is relied upon nor is it said anywhere how that duty of care was breached. I find the minute incomprehensible and it cannot be allowed to stand as the statement of claim.
6 Taken together, it would seem that the plaintiffs have two complaints. The first relates to the transaction pursuant to which the farming property was transferred from Edward Hamersley to Mount Mackie Pty Ltd. If they seek to impugn that transaction, consideration will have to be given to who is the proper plaintiff and who is the proper defendant. As I understand the position, Mount Mackie has been liquidated. It may be possible to trace the farming property so as to recover it for the benefit of the estate of Edward Hamersley. If that is to be done, the party presently owing the property would need to be joined as a party to these proceedings. It would also seem that the proper plaintiff in such an action is the estate of the late Edward Hamersley.
7 The second aspect of the plaintiffs' claim appears to be an allegation that the defendant, as the executor of the estates of Ada and Edward Hamersley has not properly administered those estates. If that allegation were to be made out, then the proper course may be to remove the defendant as the executor of either one or both of the estates. That would of course depend on a finding that the executor has not carried out the administration of the estates in a proper fashion. As matters stand at present, there is not sufficient material in either the original statement of claim or the minute, which could lead to such a finding.
8 It is proper that I give the plaintiffs leave to replead this matter. In undertaking the repleading, the plaintiffs ought give serious consideration to who is the appropriate defendant to the action and what is the appropriate relief.
9 I will hear the parties as to the precise form of orders and as to costs.
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