FILIPPO PRIMO CARDACI as Executor of the Estate of MARCO ANTONIO CARDACI, dec

GIOVANNI MAURIZIO CARRELLO as the Trustee in Bankruptcy of the Estate of MARCO ANTONIO CARDACI, dec

MATTER : Section 77 of the Trustees Act 1962

The Washburn Trust and the Marc Cardaci Testamentary Trust

Practice and procedure - Joinder - Rules of the Supreme Court 1971 (WA) - Order 18 rule 6 - Efficient case management - Ensuring all necessary parties are before the Court so that the Court may grant the appropriate relief - Court cannot make an order which directly affects or impacts upon the legal interests of a person who is not a party to the proceedings - Turn on its own facts

Practice and procedure - Pleadings - Amendment of pleadings - Discretion to allow amendment during trial - Considerations of case management, cost and delay - Trial currently adjourned due to Covid-19 restrictions - Allowing the amendments will not cause delay - Prejudice - Relevant prejudice is prejudice caused by the delay in applying for amendment - Whether the pleading fails to disclose a cause of action or is embarrassing - Turns on its own facts

Practice and procedure - Discovery - Application for discovery of an additional category of documents during trial - Peruvian Guano test - Whether the Court should exercise its discretion to order discovery - Form of the discovery order - Case management considerations - Turns on its own facts

Practice and procedure - Application for judgment - Rules of the Supreme Court 1971 (WA) - Order 30 rule 3 - Whether the court should exercise its discretion to give judgment upon any admission - Exercised with great caution and with regard to case management principals - Turns on its own facts

Family Provision Act 1972 (WA)

Ongold Corporation Pty Ltd and Rectangular Pty Ltd be joined as defendants to the proceedings

The plaintiff has leave to amend the further amended originating summons dated 11 December 2019 in terms of the minute of proposed further further amended originating summons dated 24 March 2020 as further amended by deleting from [2] the words 'is not due or payable' and inserting in their place the words 'is and has not been a debt of the estate since 10 November 2015'

The plaintiff has leave to amend the amended substitute statement of claim dated 14 August 2019 in terms of the minute of proposed re-amended substitute statement of claim dated 22 March 2020

The defendants have leave to amend their defence in terms of their minute of proposed amended defence to further further re-amended substitute statement of claim filed 21 April 2020

The defendants' summons for judgment against the fourth defendant dated 24 march 2020 is adjourned to the trial of the proceeding

The plaintiff has leave to amend the further further re-amended substitute statement of claim dated 24 January 2020 in terms of the minute of proposed further further further re-amended substitute statement of claim dated 22 March 2020.

The defendants have leave to amend the defence to the further further re-amended substitute statement of claim dated 11 February 2020 in terms of the minute of proposed amended defence to the further further re-amended substitute statement of claim dated 21 April 2020

The defendants give discovery of documents within the categories of documents identified in these reasons, except for documents which the defendants have already discovered

1. The trial of these two matters, which are being heard together, commenced on 16 March 2020. The parties concluded their opening addresses on 24 March. I then adjourned the trial because the court was unable to proceed to take oral evidence as a result of restrictions in response to the Covid‑19 pandemic.
2. On 14 and 22 April 2020 I heard a number of applications relating to pleadings and discovery and an application by the fourth defendant in CIV 3186 of 2016 for summary judgment.
3. For the reasons which follow I will make orders to the following effect:

(1) Ongold Corporation Pty Ltd (ACN 607 693 890) and Rectangular Pty Ltd (ACN 616 563 921) be joined as defendants to the proceedings.

(2) The plaintiff has leave to amend the further amended originating summons dated 11 December 2019 in terms of the minute of proposed further further amended originating summons dated 24 March 2020 as further amended by deleting from [2] the words 'is not due or payable' and inserting in their place the words 'is and has not been a debt of the estate since 10 November 2015'.

(3) The plaintiff has leave to amend the amended substitute statement of claim dated 14 August 2019 in terms of the minute of proposed re‑amended substitute statement of claim dated 22 March 2020.

(4) The defendants have leave to amend their defence in terms of their minute of proposed amended defence to further further re‑amended substitute statement of claim filed 21 April 2020.

(5) The defendants summons for judgment against the fourth defendant dated 24 March 2020 is adjourned to the trial of the proceeding.

(1) The plaintiff has leave to amend the further further re‑amended substitute statement of claim dated 24 January 2020 in terms of the minute of proposed further further further re‑amended substitute statement of claim dated 22 March 2020.

(2) The defendants have leave to amend the defence to the further further re‑amended substitute statement of claim dated 11 February 2020 in terms of the minute of proposed amended defence to the further further re‑amended substitute statement of claim dated 21 April 2020.

(3) The defendants give discovery of documents within the following categories of documents, except for documents which the defendants have already discovered:

1. all bills or accounts issued to any or all of the first defendant, the second defendant, the third defendant or the fourth defendant by Ernst & Young (whether described as EY Law or otherwise) for the period 7 November 2015 to 17 July 2017 (EY Law Accounts);
2. all bills or accounts issued to any or all of the first defendant, the second defendant, the third defendant or the fourth defendant by Brentnalls WA for the period 7 November 2015 to 17 July 2017 (Brentnalls Accounts); and

1. all bank statements, ledgers or other documents which identify the source or sources of funds from which each of the EY Law Accounts and the Brentnalls Accounts were paid.

Applications to amend CIV 3186 of 2016 originating summons and statement of claim and CIV 1750 of 2017 statement of claim

1. At the conclusion of the opening address of lead counsel for the plaintiff, Mr Cuerden SC, senior counsel for the defendants, Mr Penglis SC, submitted that Mr Cuerden had opened on matters that are not pleaded or are not adequately pleaded. After conferral between counsel, Mr Cuerden clarified some matters and moved to amend the plaintiff's statement of claim in each proceeding by a minute of proposed amended statement of claim each filed on 22 March 2020. The plaintiff also moved to amend her originating summons in CIV 3186 of 2016 by joining Ongold Corporation Pty Ltd and Rectangular Pty Ltd as defendants and amending the relief sought by the originating summons. I will first consider the plaintiff's application to amend her originating summons and statement of claim in CIV 3186 of 2016.

Amendment of CIV 3186 2016 originating summons and statement of claim The proposed amendments

1. A number of the proposed amendments in the plaintiff's minute of proposed amended statement of claim of 22 March 2020 are not contentious. The contentious amendments are the proposed amendments in relation to the Duporte Loan. Those amendments are opposed by the defendants. The defendants also oppose the plaintiff's proposed amendments to the originating summons.
2. The plaintiff moves to amend the originating summons and statement of claim to plead the case that the plaintiff wishes to run in respect of the Duporte Loan. The Duporte Loan is a loan of $1,280,714 by Duporte to Marc. At the time of his death on 7 November 2015 Marc was indebted to Duporte in that amount. On 10 November 2015 Ongold, as trustee for Marc's Testamentary Trust, repaid the Duporte Loan. In her existing originating summons and statement of claim the plaintiff asserts, and seeks a declaration that, the Duporte Loan, which is described in her statement of claim as the Alleged Duporte Loan, is not due or payable. The plaintiff pleads that in the course of the administration of Marc's estate Philip, as executor of the estate, asserted that on 10 November 2015 the alleged Duporte Loan was repaid by Ongold, as trustee for Marc's Testamentary Trust, and Philip's conduct in asserting and accepting the alleged Duporte Loan as a liability of Marc's estate was conduct that no reasonable executor would have taken and Philip thereby acted in breach of his duties as executor.
3. The plaintiff now accepts that the Duporte Loan was a valid loan and that it was repaid by Ongold as trustee of Marc's Testamentary Trust. However, the plaintiff says that the repayment of the Duporte Loan by Ongold was, and is, not a loan owing by Marc's estate to Marc's Testamentary Trust. The plaintiff proposes to amend her originating summons and statement of claim accordingly. The plaintiff proposes to plead that Ongold was not under any obligation to repay the Duporte Loan and Philip's conduct in asserting and accepting that the amount of the Duporte Loan (that is, the amount of the Duporte Loan repaid by Ongold) as a liability of Marc's estate was conduct that no reasonable executor would have taken and was in breach of Philip's duties as executor of Marc's estate.
4. The plaintiff moves to join Ongold and Rectangular as defendants and to amend the relief sought by the originating summons to include a declaration that 'the amount of a liability of the deceased's estate to the fourth defendant [Duporte] as at the date of the deceased's death of $1,280,714 is and has not been a debt of the estate since on or about 10 November 2015'. The plaintiff moves to join Ongold and Rectangular because they, at one time or another, have been, or alleged to have been, the trustee of Marc's Testamentary Trust.
5. Mr Cuerden submitted that the proposed amendments to the statement of claim accord with the way in which the plaintiff opened her case, both in writing and orally.

1. The defendants oppose the joinder of Ongold and Rectangular on the ground that whilst their joinder might be convenient it is not necessary within the meaning of O 18 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC). RSC O 18 r 6 relevantly provides that at any stage of the proceedings the court may, on such terms as it thinks just, order that any person whose presence before the court is necessary to ensure that all matters in dispute in the matter may be effectually and completely determined and adjudicated upon, be added as a party.
2. I find that the joinder of Ongold and Rectangular is necessary within the meaning of O 18 r 6. The primary relief the plaintiff seeks is an order under the provisions of the Family Provision Act 1972 (WA) amending Marc's will to make adequate provision for her proper maintenance and support out of Marc's estate.
3. The plaintiff seeks a declaration as to the liability of Marc's estate in respect of the Duporte Loan or the amount of the Duporte Loan, in support of the relief she seeks under the Family Provision Act. The extent of Marc's estate, and in particular whether it is solvent, is a relevant and important consideration in the court's discretion to make an order under the Family Provision Act.
4. Whether Marc's estate is solvent turns on the existence or non‑existence of the disputed debts ‑ the alleged Powercity Loan and the amount of the Duporte Loan. Without joining Ongold or Rectangular, the court could not make a finding as to the existence or nonexistence of the alleged debt that would bind Ongold and Rectangular.
5. This proposed joinder is not for the purpose of pursuing a cause of action against Ongold or Rectangular. The joinder is for the purpose of ensuring that all necessary parties are before the court so that the court may grant the appropriate relief. In John Alexanders Clubs Pty Ltd v White City Tennis Club Ltd,[1] the High Court confirmed that a court cannot make an order which directly affects or impacts upon the legal interests of a person who is not a party to the proceedings, however that person can be joined as a party to the proceedings in order for an order to be made that directly affects that person's legal rights or interests.
6. The presence of Ongold and Rectangular before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined. Ongold and Rectangular should be joined as defendants.

1. The defendants submit that there is no plea that what the defendants describe as the 'Ongold Loan' (that is, what the plaintiff describes as the amount of the Duporte Loan) was not a loan. That is not a sufficient reason for refusing the amendments. The plaintiff has pleaded the material facts she relies upon. She is bound by, and confined to, her pleading of those material facts. Her case is that the amount of the Duporte Loan (described by Mr Penglis as the Ongold Loan) is and has not been a debt of Marc's estate since 10 November 2015. The plaintiff seeks a declaration to that effect.

Defendants say discontinuance against Duporte should be a condition of leave to amend

1. The defendants submit that if the amendments are allowed, the plaintiff will no longer be seeking any relief which affects Duporte and Duporte will no longer be a necessary party to the proceeding. The defendants say that if the amendments are allowed, they should be allowed on the condition that the plaintiff discontinues the proceeding against Duporte and gives an undertaking not to bring any further proceeding against Duporte.
2. The plaintiff submits that to remove Duporte as a party at this stage is premature. The plaintiff pleads that the effect of the payment on 10 November 2015 was effective to discharge the Duporte Loan. It is premature to remove Duporte until the defendants have pleaded to the amended statement of claim. Until that time, there is no certainty whether or not there is any issue between the parties concerning the discharge of the Duporte Loan. Further, the defendant has applied for leave to withdraw an admission in CIV 1750 of 2017 about Philip's knowledge of the repayment of the Duporte Loan. If leave to withdraw that admission is granted, that is likely to result in amendments to the plaintiff's statement of claim consequent upon the withdrawal of the admission, which may involve Duporte having a role to play in the proceedings.

1. I will give the plaintiff leave to join Ongold and Rectangular as defendants and to amend her originating summons and statement of claim as proposed. I will not make it a condition of that leave that the plaintiff discontinue against Duporte. It would be contrary to efficient case management to do so at this time. There will be, or is likely to be, further pleadings (an amended defence in CIV 3186 of 2016 consequential upon the amendments to the statement of claim and the amended statement of claim or reply in CIV 1750 of 2017 consequential upon the amendments to the defence) which might involve Duporte. There is no practical utility in removing Duporte from CIV 3186 of 2016. Duporte was joined to ensure that it is bound by any findings of the court and has not taken an active role in the proceedings. Duporte will remain a party in CIV 1750 of 2017 which is being heard together with CIV 3186 of 2016.
2. I will give the plaintiff leave to amend her originating summons in accordance with the minute of proposed further further amended originating summons filed 24 March 2020 as further amended at the hearing. I will give the plaintiff leave to amend her statement of claim in accordance with the minute of proposed re‑amended substitute statement of claim filed 22 March 2020.

Application to amend CIV 1750 of 2017 statement of claim The proposed amendments

1. The plaintiff proposes a number of amendments to her statement of claim in accordance with the minute of 22 March 2020. It is not necessary to refer to the proposed amendments except the amendments to which the defendants object.
2. The defendants object to the amendments proposed to [100] ‑ [102]. These paragraphs plead a discrete issue which the plaintiff characterises as inadequate disclosure in respect of the offer made by Philip to the plaintiff to buy out her interests in the trusts and other Cardaci interests (Offer).
3. At [100] the plaintiff pleads that in his dealings with the plaintiff leading to the Offer, Philip represented that he would fully and frankly disclose to the plaintiff all matters that might reasonably bear upon her decision whether to accept any such offer, which is defined as the Required Disclosure. At [101] the plaintiff pleads that Philip failed to provide the Required Disclosure as set out in subpars (a) ‑ (g). At [102] the plaintiff pleads that in the circumstances in which Philip failed to provide the Required Disclosure and in breach of his duty of undivided loyalty to act in the interests of the beneficiaries of the trusts being administered and not his own interests, Philip has sought to persuade the plaintiff to enter into a settlement agreement to his own benefit.

1. I do not uphold the defendants' objections to [100] and [102]. The plaintiff does not assert that by failing to provide the Required Disclosure, Philip breached any legal or equitable duty. The plaintiff's case is that Philip's conduct is conduct which is relevant to the plaintiff's application that Philip be removed as trustee of the Washburn Trust and Marc's Testamentary Trust.

Objections to [101] (a), (b), (d) and (f) not upheld

1. The focus of the defendants' objections is that the matters pleaded in [101] (a), (b), (d) and (f) are not capable of establishing that Philip failed to provide the Required Disclosure.
2. The defendants say that the chapeau to [101] pleads that Philip failed to provide the Required Disclosure as set out in subpars (a) ‑ (g), but subpars (a), (d) and (f) plead that the information was provided but not until a certain date.
3. I do not consider that the pleading fails to disclose a cause of action or is embarrassing. The point being made by the pleading is that Philip did not provide the information in subpars (a), (d) and (f) for a significant period of time. The relevance of the delay in providing the information is that the disclosure is for the purpose of the plaintiff making a decision whether to accept the offer that Philip made. For example, subpar (a) is that Philip failed to disclose to the plaintiff the existence of the memorandum of wishes until 27 October 2016 and only then after the plaintiff herself had referred to the existence of the document. The plaintiff says that is a fact, in the light of Philip's representation that he would fully and frankly disclose to the plaintiff all matters that might reasonably bear upon her decision, that is relevant to Philip's fitness to remain trustee. Whether or not that conduct is made out and whether or not it shows Philip to be unfit to remain trustee are matters to be determined when the evidence is complete. The defendants know the case they have to meet. The pleading is not embarrassing.
4. The defendants' next complaint is in regard to subpar 101(b). That subparagraph states that information which was disclosed 'wrongly suggested' that the Washburn Trust had net liabilities of $4,849 where as in truth the Washburn Trust had net assets of not less than $40 million. The defendants say the pleaded proposition cannot be made good. The proposition that the accounts wrongly suggested something cannot be made good by reference to the accounts and the correspondence to which Mr Penglis referred.
5. I do not accept the defendants' submission. What is asserted in [101(b)] is that Philip did not disclose to the plaintiff that in fact the Washburn Trust had net assets of not less than $40 million. Rather than make that bare statement, the pleading provides some more detail from which that position is derived. The plaintiff identifies what Philip did provide, and explains why she says it failed to make disclosure as to the true value of the assets of the Washburn Trust.
6. I find that [100] ‑ [102] of the proposed amended statement of claim advance an intelligible case that, in respects there referred to, Philip's conduct is such that he is not fit to remain trustee of the relevant trusts. I find that the pleading sufficiently informs the defendants of the case they have to meet. The pleading is not embarrassing.

1. I will give the plaintiff leave to amend her statement of claim in accordance with the minute of proposed further further further re‑amended substitute statement of claim filed 22 March 2020.

Plaintiff's application for discovery The discovery application

1. By a minute filed on 20 March 2020 the plaintiff applies for discovery of the following categories of documents:

(a) all bills or accounts issued by any or all of the first defendant, the second defendant, the third defendant or the fourth defendant by Ernst & Young (whether described as EY Law or otherwise) for the period 7 November 2015 to 17 July 2017 (EY Law Accounts);

(b) all bills or accounts issued to any or all of the first defendant, the second defendant, the third defendant or the fourth defendant by Brentnalls WA for the period 7 November 2015 to 17 July 2017 (Brentnalls Accounts); and

(c) all bank statements, ledgers or other documents which identify the source or sources of funds from which each of the EY Law Accounts and the Brentnalls Accounts were paid.

1. This is not an application for further and better discovery or discovery of specific documents. Discovery has been given by categories of documents. This is an application for discovery of an additional category because of what the plaintiff characterises as a change in the way in which the defendants put their case. I am satisfied that, prior to the defendants' opening submissions, the plaintiff did not know or appreciate that the defendants' case is that Philip made the Offer in his personal capacity. I will determine this application by reference to whether the documents sought relate to any matter in question in the action and whether the court should exercise its discretion to order the discovery of those documents.

1. The defendants' case is that Philip made the Offer orally on 13 July 2016 and in five emails between 19 July and 31 August 2016. One of those emails, Philip's email of 22 August 2016, was in response to an email from the plaintiff in which she referred to information she required to make an assessment of Philip's settlement offer. In his email, Philip said he would provide 'information on the position' so that they could 'discuss information transfer and anything that [the plaintiffs' advisors] require to help advise her'. In the fifth email, Philip's email of 31 August 2016, Philip referred to the plaintiff's request for further information/documents and said he had 'sent this to my advisors for them to action'.
2. The plaintiff says correspondence was sent between 23 September 2016 and 17 July 2017, either by Philip or on his behalf, providing information and documents for the plaintiff to understand 'the position' and assess the Offer. There is evidence from which it might be inferred that at least by 27 October 2016, Philip was receiving professional assistance with respect to the preparation of this correspondence and the provision of information and documents to the plaintiff.
3. Whether Philip met the costs of that professional assistance himself or it was met by Marc's estate, the trustee of Marc's Testamentary Trust, the trustee of the Washburn Trust or some other relevant entity, is relevant to the capacity in which Philip provided the information and documents and the capacity in which Philip made the Offer.
4. The defendants submitted that the disclosure of information and documents by Philip to the plaintiff was in his capacity as executor and trustee and was unrelated to the Offer. The Peruvian Guano test is the test of general application for discovery in this Court. In the Peruvian Guano case, Brett LJ stated:

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may ‑ not which must ‑ either directly or indirectly enable the party requiring the affidavit either to advance his own case or damage the case of his adversary.[2] (emphasis added)

1. The defendants make two objections to the form of the orders sought. First, they are not limited by subject matter. Secondly, the time period that has been selected is arbitrary. I do not uphold either objection. The description of the documents and the time period specified are sufficiently confined so that the discovery sought is not oppressive.

1. The defendants say the categories of documents of which discovery has already been given is such that any documents falling within the categories of documents which are now sought will have already been discovered by the plaintiffs.
2. I accept that there is, or may be, some overlap between the categories of documents of which discovery is now sought and those for which discovery has been given. That happens not infrequently when discovery is given by classes. As a matter of case management the most efficient way to deal with that is to order that the defendants give discovery of the categories of documents sought but not documents which they have already discovered.
3. The defendants say the court should refuse to order the discovery sought in relation to bills of account as it would be futile because if there are accounts and they refer to the Offer, then they would be the subject of legal professional privilege in so far as the entries relate to the work done. Put another way, the defendants say, without the information, the purpose for which the plaintiff seeks the documents fails.
4. That submission relates only to the EY Law Accounts and not to the Brentnalls Accounts or the bank statements or other documents which identify the source or sources of funds from which the accounts were paid.
5. Mr Cuerden submitted, and I accept, that there is no legal professional privilege in accounts per se. There may be a right to redact particular entries on the basis of legal professional privilege if the entry in the account discloses the nature or the substance or the contents of any advice that was given.[3] There is a right to redact entries if the entries themselves would reveal the substance of a privileged communication. The appropriate order is to order discovery of the documents sought and leave the defendants to claim privilege for documents or parts of documents that are privileged.

1. I will order discovery in the terms sought by the plaintiff with the qualification that the defendants are not required to discover documents which they have already discovered.

Defendants' application to amend CIV 1750 of 2017 defence

1. At the conclusion of the opening address of senior counsel for the defendants, Mr Penglis SC, lead counsel for the plaintiff, Mr Cuerden SC, submitted that in a number of respects the case put by Mr Penglis in opening did not conform to the defendants' pleaded case. I invited Mr Penglis to consider his position in relation to the pleading issues raised by Mr Cuerden, confer with Mr Cuerden and, if the defendants chose to do so, move to amend their defence.
2. The defendants filed a minute of proposed amended defence on 9 April 2020. The proposed amendments were opposed in part by the plaintiff. On 14 April 2020 I heard submissions in relation to the proposed amendments and adjourned the defendants' application to amend their defence. The defendants filed a further minute of proposed amended defence on 21 April 2020. On 22 April 2020 I heard the defendants' application to amend the defence in accordance with their minute of proposed amended defence of 21 April 2020.
3. The defendants are bound by their pleading. The defendants must proceed upon their pleaded case, and on that case the defendants must succeed, or not succeed at all. The defendants may not succeed by proving a right to succeed on another case without amending their pleading so as to make it conform to their new case. However, the question whether the defendants should be given leave to change their case by amendment is a different one and is to be distinguished from questions concerning the scope of the case the defendants may advance in accordance with their existing defence.
4. Where application is made by a party for leave to amend their pleadings, the court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Ltd v Australian National University.[4]
5. The present application is made by the defendants after the commencement of the trial but, unusually, the trial is adjourned and it will be some time before it resumes. Allowing the amendments will not cause any delay in the trial proceeding. The plaintiff will have sufficient time to consider the case advanced by the defendants in their proposed amended defence. With one exception, which I will refer to later in these reasons, the plaintiff does not say that the proposed amendments will cause the plaintiff to need to investigate matters or lead further evidence. The plaintiff's objections are principally that the proposed amendments are embarrassing.
6. The plaintiff contends that the proposed pleading is deficient in a number of respects but presses only limited objections. I will consider those objections.

1. The plaintiff objects to the pleading of the Offer in [36.7] ‑ [36.11]. The plaintiff says the proposed pleading in relation to the Offer is embarrassing because it contains inconsistent allegations or fails to state facts which reconcile the apparently inconsistent allegations.
2. As a general rule, the court will not allow a party to amend a pleading into a form that is liable to be struck out on the ground that it is embarrassing. Embarrassment in this context includes a pleading that contains inconsistent allegations or fails to state necessary facts so that the plaintiff does not know what is alleged against her.
3. Mr Cuerden says there is a disconnect between the plea that the Offer was made by the defendant in his personal capacity and the pleaded terms of the Offer. The pleaded Offer is that in consideration of the plaintiff relinquishing her interests in Marc's estate, Marc's Testamentary Trust, the Washburn Trust and all other entities within the Cardaci family group, the plaintiff would be paid $2 million and would receive or alternatively keep (as appropriate) the items/amounts set out in the List under the heading 'Loan Mae Cardaci' and recorded on the List as totalling $4,292,288. Therefore, the plaintiff would have received approximately $6,300,000 in cash and assets subsequent to Marc's death. The items/amounts on the List include the Brig having a value of $105,000 and being a loan of $105,000 to the plaintiff, the Maserati recorded as a loan of $100,000 owing by the plaintiff to Duporte, various loans and adjustments stated to be loans to the plaintiff of approximately $1.9 million and 'funds gifted' of $1.8 million stated to be a loan to the plaintiff.
4. Mr Cuerden submitted that the pleaded Offer includes the following elements of consideration. First, the 'funds gifted' of $1.8 million refers to the $1.8 million in the joint account the plaintiff held with Marc before his death, which was used towards the purchase of the Watermans Bay property and was therefore the plaintiff's own money. Secondly, the loans of approximately $1.9 million are amounts which Philip alleges were advanced to the plaintiff by Marc's Testamentary Trust and would have to be repaid to the Trust. Thirdly, Philip says the Maserati is owned by Duporte, of which one half of the shares were owned by the Washburn Trust. Fourthly, the Brig was an asset of Marc's estate. So, Mr Cuerden submitted, on the face of the pleading, the only thing that Philip was paying from his own money was to underwrite any shortfall for the $2 million. Other than that, on the face of the pleading, Philip was using the plaintiff's own assets, assets of Duporte, assets of Marc's estate and assets asserted by Philip to be assets of Marc's Testamentary Trust to buy out the plaintiff.
5. Mr Cuerden submitted there is a disconnect between the plea that Philip offered the plaintiff assets that were assets of Marc's estate, Marc's Testamentary Trust and Duporte and the plea that he made the Offer in his personal capacity. Mr Cuerden says that if Philip was to use assets that are not his to deal with to make an offer in his personal capacity, there must be some further facts that would permit him to use assets that are not his in that way. Mr Cuerden submitted that those further facts ought to be pleaded so the plaintiff knows the case she has to meet. Alternatively, if the proposition cannot be made good, the plea that Philip made the Offer in his personal capacity ought to be withdrawn.
6. Mr Penglis submitted that Philip did not know how he would carry out the Offer if it was accepted and he would take legal advice how to carry it out. Philip did not offer anything that necessarily required him to act in any capacity other than his personal capacity. Accordingly, there is no fact pleaded that is inconsistent with the plea that the Offer was a personal offer.
7. In the proposed pleading, the defendant pleads the terms of the Offer and that the defendant made the Offer in his personal capacity. The defendants are confined to the material facts stated in the pleading. They may not lead evidence of material facts not pleaded in order to support the plea that the Offer was made by the defendant in his personal capacity.
8. I am not satisfied that the terms of the pleaded Offer are necessarily inconsistent with the defendants' plea that Philip made the Offer in his personal capacity. Theoretically, at least, if the plaintiff had accepted the Offer, Philip could have performed the resulting agreement in his personal capacity. He could, for example, have purchased the Maserati and the Brig from Duporte and Marc's estate respectively and then passed legal title to them to the plaintiff. Philip could have repaid the loans which the defendants allege were advanced to the plaintiff by Marc's Testamentary Trust. The defendants have not pleaded what Philip intended to do to perform the Offer if it was accepted because the defendants say he did not know what he would do and intended to take legal advice on what he should do. The issue in relation to the plaintiff retaining the $1.8 million in the joint account that she held with Marc before his death appears to be whether Philip offered the plaintiff something that belonged to the plaintiff, not whether he did so in his personal or in some other capacity.
9. The defendants may or may not make out the case advanced in the proposed pleading. The plaintiff may argue that making the Offer is conduct going to Philip's unfitness to be trustee however it might have been performed. All of those are matters for argument after the evidence is complete. I am not satisfied that the proposed amendments are embarrassing.

Loans pleaded in paragraphs 89.5, 89.6, 93A, 93B and 93C

1. The plaintiff objects to the proposed amendments to those paragraphs. Those pleas relate to the plaintiff's pleading concerning advances by Marc's Testamentary Trust to the plaintiff. The plaintiff pleads that following Marc's death Ongold, as trustee of Marc's Testamentary Trust, advanced funds totalling approximately $1,970,867 to the plaintiff for her benefit, that Philip as the controlling mind of Ongold caused Ongold to assert that the monies advanced to the plaintiff were loans to the plaintiff and that the plaintiff is indebted to Marc's Testamentary Trust in that amount. The plaintiff pleads that Philip has caused Ongold to make that assertion knowing that there is, and was, no loan agreement between Ongold as trustee of Marc's Testamentary Trust and the plaintiff in respect of the advances and that there is, and has been, no reasonable basis for Philip to cause Ongold to assert that the amounts are a loan.
2. Paragraph 89.5 of the defence presently pleads that after Marc's death, Marc's Testamentary Trust made various loans totalling $1,970,867 to the plaintiff. Paragraph 93A admits that Philip caused Ongold to make the pleaded assertion and says that Philip did so because he believes that the plaintiff is, and was, indebted to Marc's Testamentary Trust in that amount. By [93B] the defendants deny that Philip has caused Ongold to make that assertion knowing that there is, and was, no loan agreement between Ongold as trustee of Marc's Testamentary Trust and the plaintiff in respect of the advances. At [93C] the defendants deny there is, and has been, no reasonable basis for Philip to cause Ongold to make that assertion.
3. At the conclusion of the defendants' opening address, Mr Cuerden submitted that there was no plea of material facts supporting the existence of the alleged loans and the defendants could not lead evidence to sustain the existence of loans. Mr Cuerden submitted that the defendants' opening submissions concerning the loans were mostly directed to the proposition that whether these advances were loans or not, by reason of what was said to be a pre‑existing loan practice or a pre‑existing accounting practice, by which payments of various accounts were internally treated as loans whether it was legally correct or not, Philip had a reasonable basis for contending that the advances were loans. Mr Cuerden submitted that the case that Philip had acted reasonably by reference to some pre‑existing loan practice had not been pleaded.
4. The defendants propose to amend [89.5] of their defence by pleading that the loans were made in the circumstances pleaded at [89.6]. Paragraph 89.6 pleads that the advance of funds from Marc's Testamentary Trust to the plaintiff were advanced in the circumstances set out in the following 43 subparagraphs. The last two subparagraphs of [89.6] assert that in the circumstances pleaded, there was an agreement between the plaintiff and Philip that the funds advanced to or on behalf of the plaintiff were loans from Marc's Testamentary Trust and further, or alternatively, that the plaintiff acknowledged and affirmed the funds were loans by her conduct in accepting payments after Philip had informed her that payments that had been made to her and future payments would be provided by way of loan from Marc's Testamentary Trust to her. The defendants propose to amend [93B] and [93C] to say that in the circumstances pleaded, Philip had a reasonable basis for making the pleaded assertion.
5. The plaintiff makes three objections to the proposed amendments. The first objection is that the amendments do not plead the alleged loan practice. That is not a reason for disallowing the amendments. An application to amend a pleading is not the occasion for ruling whether or not an existing pleading, or the proposed amended pleading, sufficiently pleads a case based on an alleged loan practice. The defendants will be confined to their pleaded case. Whether or not that permits them to lead challenged evidence will be determined if and when the evidence is sought to be led and is challenged. Whether or not the defendants may succeed on a case based on an alleged loan practice is a matter to be determined after the evidence and submissions have been completed.
6. The plaintiff's second objection is that the defendants should, but have failed to, give particulars of the pleading that Philip and the plaintiff were aware that during his lifetime Marc had an established practice of borrowing funds from entities he controlled as a means of accessing those funds in a most tax effective way.
7. The court may order a party to give particulars as a condition of leave to amend but it is not appropriate to do so in this case. First, the proposed pleading is a pleading of knowledge. The rules do not require a party to give particulars of a pleading of knowledge.[5] Secondly, as a matter of case management, it is not appropriate to order particulars of a pleading at this stage of the trial.
8. The plaintiff's third objection is that the circumstances in the subparagraphs of [89.6] are not capable of establishing that the advances particularised in [89.5] were loans by Marc's Testamentary Trust to the plaintiff as pleaded in [89.5]. The plaintiff says the plea discloses no arguable ground of defence, it does not plead the facts which would give rise to the conclusion that there is a loan or loans.
9. As a matter of case management, it is not appropriate to decide at this stage of the proceeding whether the circumstances pleaded in the subparagraphs of [89.6] are capable of giving rise to the alleged loans. The pleaded circumstances include a large volume of emails which have been adduced in evidence in the opening submissions of counsel. The remaining circumstances are either non‑contentious or will in any event be the subject of evidence. It is appropriate to determine whether, in the pleaded circumstances, the advances are loans after all the evidence has been received and final submissions have been made.
10. The plaintiff's final objection is that if the matters that have been pleaded do not arguably give rise to the conclusion of a loan, the proposition proposed to be pleaded at [93A], [93B] and [93C] that, because of these matters, Philip had a reasonable basis for his belief, cannot be sustained. Again, it is appropriate to determine that issue after all of the evidence has been received and final submissions made.

1. The plaintiff objects to the proposed new paragraphs 34.6 and 34.7 in which the defendants plead that on 15 March 2020 Philip, Angela, Ongold and Rectangular executed a deed (the March Deed).
2. On 30 January 2017 Philip, Angela, Ongold and Rectangular executed a deed (the Deed of Dismissal) which removed Ongold as trustee and appointed Rectangular as trustee of Marc's Testamentary Trust, or purported to do so. The plaintiff pleads that the purported removal of Ongold and the appointment of Rectangular as trustee of Marc's Testamentary Trust was invalid. The defendants plead that the Deed of Dismissal was effective to remove Ongold as trustee and appoint Rectangular as trustee of Marc's Testamentary Trust.
3. On 15 March 2020, Philip, Angela, Ongold and Rectangular executed a deed (the March Deed). The March Deed recites that the parties have entered into the deed to address any uncertainty relating to the Deed of Dismissal and change of trustee. The operative clause provides that to the extent, and in so far as, the Deed of Dismissal and/or change of trustee did not result in the valid dismissal of Ongold as trustee of Marc's Testamentary Trust and the valid appointment of Rectangular as trustee, the parties, in effect, confirm the discharge of Ongold and the appointment of Rectangular as the new trustee.
4. The plaintiff's second senior counsel, Mr Cobby SC, opposed the amendment. First, Mr Cobby submitted that the defendants have given no explanation as to how the March Deed came to be made or why it was made, and in particular, why it was made on the Sunday before the trial was due to commence, when in accordance with the Rules and the case management principles explained in Aon Risk Services v Australian National University, it was incumbent upon them to do so. Mr Cobby submitted that this issue has been in the plaintiff's statement of claim since November 2017, the defendants have had an adequate opportunity to put their case, and the plaintiff should not be required to meet at the commencement of the trial a new case arising from an action taken by the defendants immediately before the commencement of the trial.
5. Mr Cobby submitted that there is a second aspect of the matter. It is to be inferred that the power of appointment has been exercised with the sole purpose of defeating the plaintiff's claim. That gives rise to the question whether that is a proper reason for the exercise of the power of appointment which is not an issue that can be litigated in these proceedings. That has to be done in new proceedings because the March Deed was created after the issue of the writ. It is not just a question of having to make amendments. The plaintiff would have to institute a new proceeding in order to deal with this issue because of the manner in which it has been raised.
6. Senior counsel for the defendants, Mr Penglis, submits that the amendment should be allowed so that the real issue between the parties may be determined. The plaintiff seeks a declaration that Rectangular has not been validly appointed as trustee of Marc's Testamentary Trust. The court should not be asked to declare that Rectangular is not the trustee when, if the March Deed is valid and effective, it is. Mr Penglis says that whether the March Deed has been exercised for a proper purpose could be raised in these proceedings by way of a reply. If the plaintiff was to plead a reply to the effect that the deed is not effective because the power was exercised for an improper purpose, the purpose being to defeat the plaintiff's existing claim, that would give rise to new factual issues but of very narrow ambit.
7. In Aon Risk Services v Australian National University, the plurality said that the parties must be given a proper opportunity to plead their case but limits may be placed upon re‑pleading, when delay and cost are taken into account.[6] Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to weighed against the grant of permission to a party to alter its case. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Invariably the exercise of the discretion to allow an amendment will require an explanation to be given where there is delay in applying for amendment.[7]
8. I will allow the amendment. The relief sought by the plaintiff includes a declaration that Rectangular is not, at the time the court gives judgment and makes orders, the trustee of Marc's Testamentary Trust. It would not be appropriate for the court to make such a declaration when evidence has been put before it of the March Deed which, on its face, has the effect of removing Ongold as trustee and appointing Rectangular as the new trustee.
9. Allowing the amendment will not cause any substantial relevant prejudice to the plaintiff. It is not relevant prejudice that the amendment may defeat the plaintiff's claim. The relevant prejudice is prejudice caused by the delay in applying to amend the defence. There was no delay in applying to amend the defence. The application to amend was made three days after the March Deed was executed; it could not have been made significantly earlier.
10. The plaintiff says the defendants delayed in executing the March Deed. If that is relevant delay, I am not satisfied it will cause any substantial prejudice to the plaintiff nor cause any delay to the trial. The trial will not resume for some time. The plaintiff will have sufficient time to answer the new case put forward by the defendants. In so far as the validity and effectiveness of the March Deed depends upon questions of law, the plaintiff will have sufficient time to consider and meet that case. In so far as the amendment gives rise to the question of whether the power of appointment was exercised for an improper purpose, that is an issue that can be litigated in these proceedings. The defendants are estopped from contending to the contrary. The plaintiff will have sufficient time to gather any evidence relevant to that issue.
11. The defendants have given no explanation on oath for their delay in applying to amend their defence to plead the March Deed. It is obvious that they did not apply to plead the March Deed earlier because it was executed only three days before the defendants applied to amend their defence by the minute dated and filed on 23 March 2020. The defendants have given no explanation for the delay in executing the March Deed. On the material before the court, the inference should be drawn that the explanation for the execution of the March Deed is that the relevant defendants wished to address any uncertainty and quell any controversy about the efficacy of the appointment of Rectangular as trustee of Marc's Testamentary Trust by putting to no effect the arguments raised by the plaintiff in the existing pleadings. The absence of any explanation why a deed to that effect was not executed earlier is not a sufficient reason for refusing leave to amend in these circumstances.

1. At [74] of her statement of claim, the plaintiff pleads that Philip caused Ongold as trustee of Marc's Testamentary Trust to pay the amount of the Duporte Loan (that is, the amount paid by Ongold as trustee of Marc's Testamentary Trust to repay the loan to Marc by Duporte) from the funds of Marc's Testamentary Trust. At [96] of their existing defence the defendants admit [74] of the statement of claim and thereby admit that Philip caused Ongold to pay to Duporte the amount of the Duporte Loan.
2. The defendants move to amend [96] of their defence by withdrawing that admission and pleading that the transfer of funds from Marc's Testamentary Trust, which repaid the Duporte Loan, was done in the circumstances set out in [96.1] and [96.2] of their proposed amended defence. Paragraph 96.1 pleads that the transfer was done by Kaye Bailey in order to give effect to Marc's intention and his instructions. The proposed [96] further pleads that Philip cannot now recall the date but shortly after the transfer of funds referred to in [96.1], Philip became aware of the transfer and on the basis that he considered it to give effect to Marc's intentions and instructions to Philip and Kaye Bailey to repay the Duporte Loan, did not take steps to reverse or otherwise change the transfer.
3. Mr Cobby submitted that the defendants should not be permitted to withdraw the admission which has stood on the pleadings since December 2017 and stood for several rounds of amendments since then. Mr Cobby says that there is no adequate explanation, either by the person responsible for the pleading, or by Phillip, of how or why a plea that Philip caused the payment to be made has become that it was made by someone else and Philip found out about it later and did nothing more about it.
4. Mr Cobby says that a second defect in the pleading is that what is now said is that the payment was made by Kaye Bailey to give effect to Marc's intentions and instructions, and that Philip became aware of the transfer and considered it gave effect to Marc's intentions and instructions to Philip and Kaye Bailey to repay the Duporte Loan, and did not take steps to reverse or otherwise change the transfer. The defendants plead at [98] that the payment was a loan, that the Duporte Loan (now described by the plaintiff as the amount of the Duporte Loan) remains a loan owing by Marc's estate to Marc's Testamentary Trust. The defendants rely upon the instructions given by Marc prior to his death, which Kaye Bailey is said to have acted upon.
5. The plaintiff says that any authority given by Marc to Kaye Bailey to make the payment was terminable and terminated upon Marc's death. So it is not a case that Marc had given a valid instruction to Kaye Bailey that was still operative after his death. The defendants' case is that Philip found out about it and effectively acquiesced in it. The law in relation to these matters is that absent the request for repayment by Marc or Marc's estate, the repayment of the Duporte Loan by Marc's Testamentary Trust is not a loan to Marc's estate. The plaintiff says it is either a voluntary payment so that there is no loan due by Marc's estate to Marc's Testamentary Trust, or it is to be properly characterised as a capital distribution by Marc's Testamentary Trust.
6. I will allow the amendment. Philip has given an explanation for the withdrawal of the admission in his affidavit sworn on 23 March 2020. Philip says that he considered the admission to be correct when it was first pleaded in the defence. However, in the course of preparing for trial he has further reflected on events and he now recalls only learning of the payment after it had been made by Kaye Bailey. He recalls that upon learning of the payment, he (Philip) did not take any steps to change or alter the payment as he considered what had been done to be consistent with what he had been told by Marc that he wanted done; that is, to pay his loan from Duporte with funds loaned from Marc's Testamentary Trust. Whether or not that is correct may be challenged in cross‑examination of Philip but it is an adequate explanation for present purposes.
7. I will not refuse the amendment on the ground that the material facts pleaded by the defendants are not sufficient to establish that the amount of the Duporte Loan is a loan owing by Marc's estate to Marc's Testamentary Trust. The defendants do not dispute that Kaye Bailey had authority to repay the Duporte Loan with funds from Marc's Testamentary Trust. The defendants' case is that the Duporte Loan was repaid by Marc's Testamentary Trust and that in the circumstances pleaded that gave rise to a loan owing by Marc's estate to Marc's Testamentary Trust. It is not appropriate to determine whether those circumstances are capable or sufficient, as a matter of law, to give rise to the pleaded loan. That should be determined after all the evidence has been received and final submissions have been made.

1. The plaintiff submits that if the defendants are given leave to amend their defence in accordance with the minute of 21 April 2020, it should be on condition that they give discovery in terms proposed by the plaintiff.
2. I do not accept that submission. The defendants' discovery obligation is ongoing in the sense that the defendants must continue to discover any documents not previously disclosed which are or have been in their possession, custody or power relating to any matter in question in the proceedings, including matters in question as a result of the amended pleading. The parties should confer about what further discovery is required from the defendants. If the plaintiff is not satisfied with the defendants' further discovery, or failure to give further discovery, the plaintiffs may apply on short notice for appropriate orders.

1. The defendants in CIV 1750 of 2017 will have leave to amend their defence in accordance with their minute of proposed amended defence to further re‑amended substituted statement of claim filed on 21 April 2020.

Application to amend CIV 3186 of 2016 defence Proposed amendments

1. The plaintiff contends that the proposed amendments to the defendants' defence in CIV 3186 of 2016 are deficient in a number of respects but presses only two objections to the proposed amendments.
2. First, the plaintiff objects to the pleading of the Offer in [15I] to [15M] which mirror [36.7] to [36.11] of the defendants' defence in CIV 1750 of 2017, on the same grounds that she objects to the proposed [36.7] to [36.11] of the defendants' defence in CIV 1750 of 2017. I find the amendments should be allowed for the same reasons I have stated in relation to the corresponding proposed amendments in CIV 1750 of 2017.
3. Secondly, the plaintiff objects to the pleading of the loans in [36.5] and [36.6A] which mirror [89.5] and [89.6] in the defendants' proposed defence in CIV 1750 of 2017, on the same grounds that she objects to [89.5] and [89.6] of the defendants' defence in CIV 1750 of 2017. I find the amendments should be allowed for the same reasons I have stated in relation to the corresponding proposed amendments in CIV 1750 of 2017.

1. The defendants in CIV 3186 of 2016 will have leave to amend their defence in accordance with their minute of proposed amended defence to further re‑amended substituted statement of claim filed on 21 April 2020.

Application for judgment for Duporte in CIV 3186 of 2016 The application

1. Duporte has applied pursuant to RSC O 30 r 3 that the action against it be dismissed.
2. RSC O 30 r 3 provides that where admissions of fact have been made on the pleadings or otherwise, any party may at any stage of a cause or matter apply to the court for such judgment or order as upon such admissions he or she may be entitled to, without waiting for the determination of any other question between the parties, and the court may on such application make such order or give such judgment as the court thinks just.
3. Senior counsel for the defendants, Mr Penglis, said that the admissions which the defendants rely upon are the admissions in the plaintiff's opening and the admissions contained in the plaintiff's minute of proposed re‑amended substitute statement of claim dated 22 March 2020. Mr Penglis submitted that there is no basis upon which it can be maintained that what was called 'alleged Duporte Loan', is not or was not due and payable.

1. The court has a discretion to give judgment upon any admission but it should also be exercised with great caution and having regard to case management principles.
2. I have stated earlier in these reasons that to remove Duporte as a party at this stage is premature. For the same reasons it is not, as a matter of discretion, appropriate to give judgment in favour of Duporte at this time. Duport's motion for judgment will be adjourned to the trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] John Alexander Clubs Pty Ltd v White City Tennis Clubs Ltd [2010] HCA 19; (2010) 241 CLR 1.

[2] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63.

[3] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181.

[4] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

[5] RSC O 20 r 13(1)(b) requires a party who alleges any condition of the mind of any person, except knowledge, to give particulars of the facts on which the party relies.

[6] Aon Risk Services v Australian National University [98].

[7] Aon Risk Services v Australian National University [102].