Veltman v Veltman
[2022] WASC 302
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VELTMAN -v- VELTMAN [2022] WASC 302
CORAM: CURTHOYS J
HEARD: 2 MARCH 2022
DELIVERED : 8 SEPTEMBER 2022
FILE NO/S: CIV 1024 of 2021
BETWEEN: FRANCES VELTMAN
Plaintiff
AND
MICHAEL VELTMAN
Defendant
Catchwords:
Practice and procedure - Application by defendant for summary judgment - Affidavit filed in support of application defective - Affidavit filed in opposition raises factual issues
Legislation:
Rules of the Supreme Court 1971 (WA), O 16 r 1
Result:
Application for summary judgment dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | D J Pratt |
| Defendant | : | J Henderson |
Solicitors:
| Plaintiff | : | Bechelet & Co |
| Defendant | : | Butlers Lawyers & Notaries |
Cases referred to in decision:
Cockman v Gorman [2022] WASC 125
Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153
CURTHOYS J:
Introduction
On 22 June 2021, the defendant, Michael Veltman, filed an application by summons for summary judgment against the plaintiff, Frances Veltman, pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules). The orders sought were:
1.Pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) … leave be granted to the Defendant to apply for summary judgment.
2.Judgment in the matter be entered for the Defendant summarily.
3.The Plaintiff pay the Defendant's costs of the proceedings up to and including the offer of 31 May 2021 in an amount to be fixed.
4.The Plaintiff otherwise pay the Defendant's costs of the proceedings from 31 May 2021 until the date of judgment on an indemnity basis.
The application for summary judgment was filed more than 21 days after an appearance was entered.[1] Michael therefore requires leave to bring the application.
[1] Memorandum of appearance entered 10 February 2021.
Michael affirmed and filed an affidavit in support of the application for summary judgment on 22 June 2021.
Frances filed an affidavit sworn 28 January 2022 in opposition to the application for summary judgment on 31 January 2022.
For the reasons that follow, Michael's application for summary judgment should be dismissed.
Background
These proceedings were commenced by Frances by writ of summons filed on 19 January 2021. The writ was served on Michael on 31 January 2021.
Frances and her brothers, Michael and Phillip Veltman, are the children of David Veltman and Dulcie Veltman.
David died on 13 August 2003. Upon David's death, his estate was distributed between numerous parties including Phillip.
Dulcie died on 20 January 2022.
Since 2003, Phillip has been subject to guardianship and administration orders made by the State Administrative Tribunal under the Guardianship and Administration Act 1990 (WA).
In March 2003, Frances and Michael were appointed plenary administrators in respect of Phillip's affairs.[2] It is unclear when that appointment ended.
[2] Affidavit of Frances Veltman sworn 28 January 2022, 31, annexure D (2) (Frances Veltman Affidavit).
On 10 January 2006, Michael was appointed plenary administrator in respect of Phillip's affairs.[3]
[3] Frances Veltman Affidavit, 27, annexure C (14).
On 1 February 2006, the Phillip Veltman Trust was created by deed (the Trust). Michael was appointed trustee, guardian and appointor of the Trust. Phillip was stated to be the Named Discretionary Beneficiary and the Residuary Beneficiary.[4] The Discretionary Beneficiaries of the Trust relevantly included Phillip as the Named Discretionary Beneficiary, Dulcie, Frances and Michael as well as their children, grandchildren and spouses.[5]
[4] Affidavit of Michael Veltman affirmed 22 June 2021, 54, annexure MGV-4 (41) (Michael Veltman Affidavit).
[5] Michael Veltman Affidavit, 15 - 16, annexure MGV-4 (2 - 3).
On 22 February 2006, the Trust registered a purchase of a property at 3/57 Manning Road, Como (the Como Property).
The Como Property was Phillip's residence.
Phillip died intestate in July 2020.
Frances filed an amended statement of claim on 16 April 2021. Her claim concerns Michael's alleged mismanagement of the Trust and breaches of his duties as trustee. The relief sought in the amended statement of claim (Statement of Claim) is:
A.An order that the Defendant is to disclose the Trust Deed to the Plaintiff.
B.An order that the Defendant is to account to the beneficiaries of the Trust.
C.That the Defendant be removed as the Trustee of the Trust pursuant to section 77 of the Trustee Act 1962.
D.That the Plaintiff is to be appointed as the Trustee of the Trust, pursuant to section 77 of the Trustee Act 1962.
E.That the Court is to make a Vesting Order of suitable terms pursuant to sections 78 and 85 of the Trustee Act 1962.
F.That the Defendant be removed as the Guardian of the Trust.
G.That the Defendant be removed as the Appointor of the Trust.
H.That the Plaintiff is to be appointed as the Guardian of the Trust.
I.That the Plaintiff is to be appointed as the Appointor of the Trust.
J. Such further or other relief as this Honourable Court may consider just and equitable.
K.Costs.
On 1 February 2021, Michael's solicitors provided a copy of the Trust Deed to Frances. The parties agree that this is the document sought by Frances in the Statement of Claim.[6]
[6] Amended statement of claim filed 16 April 2021 [20J]; Defence filed 5 May 2021 [11] (Defence).
Michael filed a defence on 5 May 2021.
Applications by a defendant for summary judgment
Order 16 r 1(1) of the Rules provides that if the court is satisfied that an action is frivolous or vexatious, the defendant has a good defence on the merits, or that the action should be disposed of summarily without pleadings, the court may order:
(a)that judgment be entered for the defendant with or without costs; or
(b)that the plaintiff shall proceed to trial without pleading.
An application for summary judgment must be supported by affidavit prepared in accordance with O 16 r 1(2) and (3):
(2)An application under subrule (1) shall be made by summons supported by affidavit verifying the facts upon which the application is based.
(3)Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
I have set out the general principles relating to a defendant's application for summary judgment in Cockman v Gorman:[7]
[7] Cockman v Gorman [2022] WASC 125 [21] - [23].
An application for summary judgment faces a high hurdle to succeed. The general principles applicable to an application of this nature were summarised in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] ‑ [55].
A summary judgment application focuses on the plaintiff's pleading … [M]atters of fact which are in the statement of claim must be accepted for the purposes of the summary judgment application. The defendant bringing the application bears the legal onus of establishing that there is no real question to be tried, or that the case is bound to fail, sufficient to warrant the grant of summary judgment
However, once it appears that there is a real question either of fact or of law, an application for summary judgment must fail. As the High Court held in Spencer v The Commonwealth of Australia:
Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.
(footnotes omitted)
Michael bears the legal onus of establishing that there is no serious question to be tried on any cause of action raised by Frances.[8]
[8] Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich[2018] WASC 153 [29].
The material filed in respect of the application and disposition
Order 16 r 1(2) of the Rules requires that an affidavit filed in support of an application for summary judgment must verify the facts upon which the application is based. The affidavit filed by Michael in support of this application falls short of the requirement to verify the facts supporting the application. The majority of the affidavit addresses the history of the proceedings. The balance addresses the agreed facts about the Trust. The facts are not verified as required by the Rules.
Further, the affidavit filed by Frances in opposition to the application for summary judgment raises a number of factual issues that make it inappropriate to order summary judgment.
For example, Frances submits that notwithstanding the express terms of the Trust requiring Michael as trustee to keep complete and accurate books of account and the duties of a trustee in equity, it appears that Michael has not kept any books of account for the Trust.[9]
[9] Plaintiff's written submissions filed 25 February 2022 [15].
Michael's position is that it is unnecessary to keep books of account because the only asset of the Trust is the Como Property that Philip lived in and accordingly the Trust received no income.[10]
[10] Defence [14] - [16].
Whether or not Michael is required to keep books of accounts is clearly a question of fact.
The Trust Deed has been disclosed and the relief sought in par A of the Statement of Claim is unnecessary.
I accept much of what Michael has submitted about the deficiencies of the Statement of Claim. However, rather than a summary judgment application, it would have been more appropriate to bring a strike out application.
The matters raised in Michael's submissions may be able to be addressed in an amended statement of claim.
Orders
For the above reasons, I make the following orders:
(1)The application for summary judgment for the defendant is dismissed.
(2)The costs of the application are costs in the cause.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
8 SEPTEMBER 2022
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