Crown in the right of New South Wales v Anthony Gevaux

Judgment 1HER HONOUR: In these proceedings the plaintiff, by notice of motion filed on 10 September 2010, has sought summary judgment against Mr Gevaux in the sum of $256,857.20 pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) or, in the alternative, summary judgment for part of the claim. (Orders were also sought in the notice of motion for the Defence and Cross-Claim filed by Mr Gevaux to be struck out pursuant to Rule 14.28 although ultimately that was not pressed on the conclusion of the hearing of the motion in April this year, by which time an Amended Defence and Cross-Claim had been filed.) 2The hearing of the Crown's motion commenced towards the end of last year, together with an application in relation to the variation to, and extension of, a freezing order that had been made in relation to Mr Gevaux's assets (that freezing order having first been made by Gzell J on an ex parte basis on 24 December 2009 and extended/varied on successive occasions since then). However, after hearing submissions in relation to the claim as then pleaded, the motion was adjourned part-heard and leave was given to the Crown to file an amended Statement of Claim. Procedural directions were made for the filing of the amended Statement of Claim and for the matter to be re-listed for the completion (assuming that the Crown then wished to maintain its application for summary judgment) of the hearing of that application in November last year. 3After a succession of direction hearings (and having vacated the hearing date for the resumption of the hearing of the Crown's summary judgment application at least twice at the request of the parties), the matter finally came back for completion of the hearing of the Crown's summary judgment application on 19 April 2011. 4On that occasion, Counsel for the Crown (Mr Hyde) handed up a proposed Second Amended Statement of Claim on the basis that, in effect, if the summary judgment application did not succeed, and if (having regard to comments that had been made during the course of previous applications before me) the defendant then sought to strike out the Amended Statement of Claim, then the Crown would wish to rely on the second cause of action identified in the proposed Second Amended Statement of Claim (to which I will refer in due course). 5Mr Hyde confirmed, however, that the Crown was seeking to maintain its summary judgment application on the pleadings as they then stood before me (i.e. on the basis of the claim pleaded in the Amended Statement of Claim filed on 5 November 2010), prior to the consideration of the Crown's application further to amend its pleading. 6Although it was urged upon me by Counsel on behalf of Mr Gevaux (Mr Benson) that, rather than determining the summary judgment application, I should proceed instead to list the matter for a hearing of the substantive claim (however the Crown might ultimately wish to put that claim) on the basis that this would accord with the statutory mandate for the just, quick and cheap resolution of the real issues in dispute, I considered that the statutory mandate would be best observed in this instance by completing the hearing of what had commenced last year (as the Crown pressed me to do). 7Before turning to the relevant principles to be applied on a summary judgment application, I set out briefly the background to the proceedings and what has occurred to date in the present proceedings. Background 8Mr Gevaux is a former member of the New South Wales Police Force. He suffered a serious work related injuries during the course of his employment on 15 February 2006. He subsequently made an application in August 2007 for a partial and permanent disability benefit under the Crown Employees (Police Officers Death and Disability) Award 2005. Under the terms of the Award, as gazetted on 10 March 2006 in the NSW Industrial Gazette, there are different types of disability or disablement entitlements (broadly speaking, the distinction in the present case is between a partial and a permanent disability or disablement). 9The Award provides, in clause 16.1 that it applies to all police officers (as defined in clause 3) "who are employed by NSW Police". 10There are different sources for the different types of entitlements provided for under the Award. Entitlements provided by the NSW Police Force (being the lump sum payable under clause 9 for partial and permanent disability) are to be assessed by the NSW Police Force (clause 10.6); whereas entitlements to a lump sum benefit from the First State Super insurance scheme (ie the death or total and permanent disablement entitlement under clauses 7 or 8 of the Award) are to be assessed in accordance with the First State Super Trust Deed and Policy document (clause 10.8 of the Award). 11Mr Gevaux's application for a partial and permanent disability benefit was approved and Mr Gevaux received a sum of $257,857.20 (the First Sum) on 4 March 2008 (less deductions for the applicable tax) on 4 March 2008. It is this amount ($257,857.20) plus interest that the Crown is seeking to recover in the present proceedings. 12The procedure by which the such payments are ordinarily made was explained in affidavits read on this application and sworn by Ms Rosemary Byatt, a finance officer employed by the NSW Police Force, and by Mr Brett Viquerat, an administrative officer employed in the Shared Services Unit of the NSW Police Force, which oversees the processing of medical discharge applications by injured police officers. 13That procedure involves an assessment of the claim by a Medical Discharge Review Panel and the ultimate approval of the relevant application by the Commissioner of Police. By affidavit sworn 12 April 2011, Mr Brett Viquerat deposes as to his inspection of the electronic payroll records of the NSW Police Force and says that these indicate that the First Sum payment was made directly by the NSW Police Force to Mr Gevaux on 4 March 2008. 14At the time that Mr Gevaux applied for the partial and permanent disability benefit (on 27 August 2007), he signed a document described as a "Deed-Undertaking To Repay" (to which I will refer as the Undertaking, in order to distinguish it from a later deed also signed by Mr Gevaux). Mr Gevaux's execution of the Undertaking was witnessed by a Ms Wilma Gevaux. 15The Undertaking was expressed to be executed as a deed. The other party to the deed was the Commissioner of Police "for and on behalf of the New South Wales Police Force ... an agency of the Crown in the right of New South Wales" (defined in the deed as the NSW Police Force). The Undertaking was signed by a person described as the duly authorised delegate of the Commissioner. 16The Undertaking recited that Mr Gevaux had become entitled to a benefit under clause 9 of the Award for partial and permanent disability and that clause 10.6 of the Award provided that members could receive only one benefit (either a "partial and permanent disability benefit" [under clause 9] or a "total and permanent disablement benefit" [under clause 7 or 8]). 17Recital C recorded the parties' agreement "in accordance with the terms of this Deed" that Mr Gevaux would repay to the NSW Police Force all moneys paid to him under the Award in the event that he "becomes entitled to a benefit under clause 7 or clause 8 of the Award and receives payment for that benefit". (The reference to a payment under those other clauses of the Award encompassed any later payment of a benefit for total and permanent disablement in relation to the injury.) 18The Undertaking also contained (in clause 6) an express acknowledgment by Mr Gevaux that, prior to its execution, he had sufficient time and opportunity to obtain independent legal advice in respect of the deed. (Since the Undertaking is dated the very date of the application by Mr Gevaux, if that acknowledgment were correct then what must have been contemplated was an opportunity to obtain advice as to the operation of the deed in advance of the application for the benefit in the first place.) 19Mr Gevaux's evidence in the current proceedings (and his assertions to the NSW Police Force when the request for repayment was pressed) is that he does not recall signing the Undertaking (though he accepts that it is his signature on the document). By affidavit sworn on 29 September 2010, Mr Gevaux also says that he does not recall receiving any advice about the Undertaking (nor does he recall sending the emails he later sent in which he acknowledged an obligation to repay that amount). 20Mr Gevaux was unable to return to work after his injury (he suffered severe depression as well as the physical injuries sustained in the incident) and subsequently applied for, and obtained, a "total and permanent disablement benefit" pursuant to the Award. In or about June 2009, Mr Gevaux received a payment in the sum of around $500,000.00 (the Second Sum) representing that total and permanent disablement benefit. Unlike the First Sum, payment of this amount was made by MetLife Insurance Ltd, the insurer for the NSW Police Force in respect of such claims, on behalf of First State Super. 21The procedure for such payments was also described in the affidavits read on the present application. Relevantly, it appears that payment of a total and permanent disablement benefit (unlike the payment of a partial and permanent disability benefit made by the NSW Police Force) is made after approval by MetLife (which manages the claims and acts as agent on behalf of First State Super) and that the NSW Police Force is not notified at the time of payment but only by way of a subsequent periodic listing of those for whom total and permanent disablement benefits have been made. 22Once the relevant department within the NSW Police Force became aware of the payment of a total and permanent disablement benefit to Mr Gevaux, a request was made that Mr Gevaux repay the First Sum. (Mr Gevaux refers, in some of his correspondence, to a letter of 1 June 2009 in which that request was made.) Formal demands were made by letters of 9 and 17 September 2009. 23Mr Gevaux's response to the initial request for repayment (by email on 16 June 2009) was to acknowledge that he owed the Police Force the sum of $257,587.20 (even though he noted that he had received a lesser sum at the time, due to the deduction of tax from that amount) and to request that he be allowed an opportunity to repay that amount by instalments of $200 per week until the end of December when a term deposit (in which he said that he had invested his monies) would mature. (Pausing there, the email does not make it clear whether it is the First Sum received in March 2008 that was said to have been so invested or the Second Sum received later in June 2009, although given the gambling losses apparently sustained from 2008 it seems more likely that it was the Second Sum that was so invested.) 24In support of his request to make the repayment in instalments until maturity of his investment, Mr Gevaux made reference to his medical condition and to the loss he would sustain if the term deposit were withdrawn prior to maturity. He also referred to the unfairness of being out of pocket for the amount of the tax referable to that sum for the period until the tax office made the relevant adjustment to reflect the reimbursement of that amount to the NSW Police Force. A similar request was sent direct to the Commissioner on 19 April 2009. 25Whether or not there was in fact any such term deposit is unclear. If there was, then it too seems to have been dissipated if the contents of Mr Gevaux's subsequent affidavits as to his assets are correct. Mr Gevaux's then solicitors, writing in December 2009, referred to the large gambling losses suffered by Mr Gevaux over the period - it was said that Mr Gevaux had gambled much of his 'benefit' on an internet gambling account (on which his losses were said to have amounted to some $480,708). Reference was also made to Mr Gevaux's addiction to painkillers. Mr Gevaux says that he was drinking heavily at the time. 26There is no dispute but that Mr Gevaux did not repay the First Sum (although he made a payment of $1,000 on 21 September 2009 which, together with the correspondence referred to above, is relied upon as an acknowledgment of the liability to repay the First Sum). 27The Crown initially commenced proceedings by Statement of Claim in the District Court in 2009, though as at December 2009 service of that writ had not been able to be effected on Mr Gevaux. In that writ, recovery of the First Sum was sought pursuant to clause 10.6 of the Award and the Undertaking. 28The matter then came before this Court on an ex parte application for a freezing order under Rule 25.11 of the Uniform Civil Procedure Rules . Gzell J made the freezing order on 24 December 2009, on the usual undertaking as to damages being proffered by the Crown, and the matter was made returnable before the vacation judge in January 2010. On 14 January 2010, Harrison J extended the operation of the freezing order and varied its terms. An order was made for Mr Gevaux to serve an affidavit deposing to his assets (and, when he failed to do so, a motion for contempt was filed by the Crown). In due course, Mr Gevaux did file affidavits as to his assets and liabilities and in those affidavits (20 March 2010 and 26 May 2010), Mr Gevaux deposes to having little left in the way of assets. 29In March 2010, the District Court file in relation to the proceedings there commenced by the Crown was transferred, by order of this Court, to this Court. Successive extensions were then made to the freezing orders. 30Towards the end of 2010, separate proceedings in relation to a workers' compensation claim against the NSW Police Force were settled by way of a payment of $250,000 to be made to Mr Gevaux. 31A Deed of Release was entered into in the context of the settlement of that claim in or about August 2010 (the copy deed in evidence in the present proceedings being undated). Under that Deed, to which both the Crown and the NSW Police Force were party (the latter in its stated capacity as employer of Mr Gevaux), the Crown agreed to pay and Mr Gevaux agreed to accept the sum of $250,000 (less agreed deductions) "in full and final settlement of the Proceedings [defined as meaning the claim for lump sum compensation for work injury damages brought by Mr Gevaux pursuant to the relevant workers compensation legislation]". 32The recitals to the Deed of Release noted the allegations that had been made in the workers' compensation proceedings relating to the alleged injury, loss and damage suffered by Mr Gevaux by reason of his employment as a police officer (recital A); the denial of liability as alleged or at all (recital B); and, in recital C, that: Without admission of liability and to avoid the cost and inconvenience of further protracted litigation, the Parties have agreed to resolve the Proceedings and the disputes between them subject to the terms and conditions contained in this Deed. (my emphasis) 33Clause 3 (headed "The Plaintiff/Claimant releases the Defendant and the Employer") contained the following releases by Mr Gevaux in favour of both the Crown and the NSW Police Force: 3.1 Release The Plaintiff/Claimant releases and discharges the Defendant and the Employer from all actions, suits, claims , demands, causes of action, costs and expenses (excluding the regulated costs included in the Settlement Sum), legal, equitable, under statute and otherwise, and other liabilities of any nature which the Plaintiff/Claimant: (a) now has (b) at any time had; (c) may have; or (d) but for this Deed, could or might have had, against the Employer and or the Defendant in any way related to the Proceedings or the circumstances recited in this Deed or allegations or circumstances arising out of or in any way connected or related to the Proceedings and the circumstances recited in this Deed or anything in any way related to them. 3.2 Workers' compensation release The Plaintiff/Claimant releases and discharges the Defendant and the Employer from all actions, suits, claims , demands, causes of action, costs and expenses (excluding the regulated costs included in the Settlement Sum), legal, equitable, under statute or otherwise for injuries of any nature including but not limited to lumbar spine, lower back and legs, disease, depression and psychiatric condition arising out of his employment with the Employer or in any way related to the proceedings or the circumstances recited in this Deed which the Plaintiff/Claimant: (a) now has (b) at any time had; (c) may have; or (d) but for this Deed, could or might have had, to any further entitlement to receive workers' compensation benefits ... 34Clause 4 of the Deed of Release contained an indemnity in favour of the Employer/Defendant against any claim made by Mr Gevaux, or on his behalf or through him, in relation to or in connection with the Proceedings and the circumstances recited in the Deed or anything in any way related to them and that it was a continuing, separate and independent obligation surviving termination completion or expiration of the Deed. 35Clause 6 provided that: This Deed may be pleaded as a full and complete defence by either Party to any action, suit or proceedings commenced, continued or taken by the other Party or on its behalf in relation to any of the matters referred to in this Deed. 36It seems that the execution of the Deed of Release was not something brought to the attention of the legal representatives acting for the respective parties in the present proceedings until some time after the relevant deed was signed. In any event, once it was appreciated that Mr Gevaux was soon due to receive a workers' compensation settlement amount, the Crown sought orders in relation to the preservation of the settlement proceeds (conceded to be the only source of funds then remaining available to Mr Gevaux) those funds then being in the hands of solicitors (Hunt & Hunt). Mr Gevaux's history of dissipation of moneys through his gambling addiction was relied upon in this regard. 37It was at that stage that the matter first came before me. I made orders that had the effect of enabling the workers' compensation proceeds to be transferred to and held in a solicitors' trust account (by Slater & Gordon), and to be preserved, subject to deductions in relation to medical/legal expenses or the like. 38When the hearing of the summary judgment application commenced last year, the defence that had been filed to the Statement of Claim was broad ranging. Mr Gevaux did not admit the effect of the Award as pleaded and asserted that he had no recollection of signing the Undertaking. There followed a myriad of defences (including a claim under the Contracts Review Act 1980 (NSW), a claim of non est factum, claims of unconscionability, unilateral mistake, innocent misrepresentation, estoppel, breach of duty by reason of Mr Gevaux's employment and breach of fiduciary duty), all of which may be characterised as involving an attack on the validity of the Undertaking. 39Mr Hyde submitted that what those defences did not overcome was the simple fact that Mr Gevaux had received two disablement/disability benefits and had been entitled under the Award only to one. 40Relevantly, for present purposes, Mr Hyde said on that occasion that the Crown's claim was for money overpaid and to which Mr Gevaux had no entitlement and expressly adverted to this as a restitutionary claim brought against Mr Gevaux personally and seeking recoupment of the moneys (it was said that whether the moneys had been dissipated was irrelevant). 41Mr Benson, on the initial hearing of the summary judgment application, placed weight on an argument that the Crown had no standing to maintain the proceedings as it was not a party to the Award and was not Mr Gevaux's employer (though this was not raised in the defence). 42By letter dated 30 September 2010, Mr Gevaux's solicitors had expressly sought advice as to the precise basis upon which it is asserted that the Crown was the proper plaintiff in the proceedings and had not been enlightened. 43Reliance was placed by Mr Benson on Enever v The King , in the context of the extent of the vicarious liability of the Crown, and to ss 6-8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), particularly s 6 of which, that provides that for the purposes of that Act a police officer is deemed to be a person "in the service of the Crown and not a servant of the Crown". 44Mr Benson submitted that there was a statutory lacuna and that it was unclear who in fact was the employer of police officers in New South Wales (noting that the Police Act 1990 (NSW) in terms establishes the police service or police force without saying what it is in corporate terms and without saying that it is capable of being sued - unlike legislation in relation to other governmental or quasi-governmental authorities). Reference was made to the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) (operative on 1 January 2004 but then repealed on 6 July 2004) which had, for the avoidance of doubt, provided in clause 2A that a police officer was an employee of the Crown for the purposes of that Act. 45Mr Benson therefore submitted that there was sufficient doubt as to the standing of the Crown to bring the claim (then made) under the Undertaking as to preclude summary judgment being given in the Crown's favour on the application then before the court. 46Mr Hyde relied on s 4 of the Crown Proceedings Act 1988 (NSW) as giving the Crown standing to sue and maintained that it was the proper plaintiff to sue for the recovery on moneys repayable under the Act. Mr Hyde pointed out that in State of New South Wales v Fahy [2006] NSWCA 64, Basten JA held that the NSW Police Force (established by s 4 of the Police Act 1990 (NSW)) is not a legal entity in its own right. Mr Hyde noted that the Police Force is a part of the public sector service as defined in s 3 of the Public Sector Employment and Management Act 2002 (NSW) (the note to s 4A of which refers to employment in the Force as part of one of the ways in which employment may be in the service of the Crown). 47As to the restitutionary claim to which Mr Hyde had referred, Mr Benson argued that no such claim was pleaded as such (noting that nor was there a claim based on the Award pleaded) but that, in any event, Mr Gevaux's incapacity was such that no restitutionary claim could be made (relying on the line of cases in which contracts with minors or lunatics were held to be unenforceable and did not give rise to a restitutionary remedy). 48Mr Hyde, in response, identified the resitutionary claim as being the payment and receipt of funds in circumstances which amounted to an overpayment and submitted that the validity of the Undertaking (and hence the dispute as to title to sue for breach of the Undertaking) was a red herring. 49What was, therefore, squarely raised on that occasion was not simply that the defendant's position was that title to sue was in issue but also that the Crown was maintaining that it had a restitutionary claim arising out of the fact that Mr Gevaux had received two payments when he was entitled only to one. Mr Benson contended that such a claim had not been properly pleaded but at the same time conceded that it might be necessary for the defence to seek leave to amend its pleadings in order to raise the defence that had been articulated before me. It was in that context that an adjournment for both parties to consider the pleadings was granted and I stood the matter over part heard to 23 November 2010. At the same time I made some directions for the filing of any amended statement of claim. 50On 5 November 2010, the Crown duly filed its Amended Statement of Claim. That pleading, in effect, based the claim on an entitlement arising by reference to the receipt of funds under the terms of the Award that obliged Mr Gevaux to repay the sum (and did not now seek to rely upon the Undertaking as giving rise to a contractual obligation to repay the monies). 51In paragraph 12 of the Amended Statement of Claim, the Crown alleged that "in the premises" (this referring back to the preceding paragraphs of the pleading) it was entitled to recoupment of the First Sum, less the payment of $1,000 made on 21 September 2009 pursuant to the demand by the Crown. The entitlement therefore rested on what was alleged in paras [1] - [11]: Paragraph [1], which is admitted, pleads that Mr Gevaux had become entitled to the partial and permanent injury entitlement. Paragraph [2], which is not admitted, pleads that under the Award there is only an entitlement to one or other of the two benefits. Paragraph [3], which is admitted, pleads that on 29 August 2007 the Crown received Mr Gevaux's application for a partial and permanent disability benefit pursuant to the Award. Paragraph [4], which is not admitted, pleads that under the Award the Crown was required to make the payment to Mr Gevaux if the NSW Police determined that there was an entitlement. Paragraph [5], which is admitted (but only as to the pleaded effect of clause 16.2 of the Award, which renders the Award binding on the Association and the NSW Police Force, denying the plaintiff's asserted right to make any claim to the monies), pleads that the Award is binding on the NSW Police Force. Paragraph [6], which is admitted, pleads the payment and receipt by Mr Gevaux of the First Sum. Paragraph [7], which is admitted, pleads that Mr Gevaux had become entitled to a total and permanent disablement entitlement in June 2009. Paragraph [8], which is admitted (but only insofar as it pleads receipt of a sum, not the particular sum there pleaded), pleads the payment of $500,000 to Mr Gevaux in respect of that entitlement. Paragraph [9], which is not denied, pleads that the Crown is entitled to recoup the First Sum in the circumstances. (Mr Gevaux's Amended Defence asserts that the Award does not give rise to any cause of action or entitlement against Mr Gevaux.) Paragraph [10], which is admitted (as to the making of the demands but not as to the right to make the demands), pleads the making of the demands for repayment on 9 September and 17 September 2009. Paragraph [11], which is admitted, pleads the payment of $1,000 by Mr Gevaux pursuant to the demand. 52I interpose to note that the proposed paragraph [12A] of the Second Further Amended Statement of Claim (for which leave has not yet been granted), seeks to clarify that the claim as so pleaded is a claim in restitution, adopting the short form pleading of a money had and received claim for which the rules provide (Rule 14.12(1)(f)). The proposed [12A] states: The plaintiff's claim is for $257,580.20 being money payable by the defendant to the plaintiff as money had and received by the defendant to the use of the plaintiff. and, by way of particularisation of that allegation, reference is made to the preceding paragraphs of the pleading and to the emails of and around 19 June 2009 in which Mr Gevaux acknowledged a liability to repay the First Sum. (There is no such short form pleading in the pleading as it currently stands, ie before leave is given for the further amendment now sought.) 53By letter dated 10 November 2010 (which, with the response dated 9 February 2011, was admitted as Exhibit 1 on the present application), particulars were sought of the Amended Statement of Claim including as to the basis on which it is asserted that the Crown became entitled to recoup any monies from Mr Gevaux. The response was simply to refer to s 4 of the Crown Proceedings Act, 1988. In particular, there was no reference to restitution being the basis for this claim. 54Therefore, the amended pleading, as at the time of the resumption of the summary judgment application hearing in April this year, seemed to rest the claim solely on the receipt of the payment of the respective sums and a liability to repay the amount of the first payment (sourced back to the Award and Mr Gevaux's acknowledgment of such a liability) but not to base the claim on the Undertaking (nor to plead it, in a short form fashion or otherwise, as a restitutionary claim). 55The Crown's position at that stage, as set out in paragraph [51] of the response to the request for particulars, was that: It will be the Plaintiff's submission on its summary judgment application filed on 10 September 2010 that the Crown is the proper Plaintiff in these proceedings and that it has a right of recoupment for the reasons set out above regardless of the validity or otherwise of the Deed of Undertaking to Repay ... [however, the reasons set out in the preceding particulars did not in terms refer to a claim in restitution] 56That letter concluded by expressly reserving to the Crown the right to seek leave to amend its pleading "to include a claim for restitution based on the Deed of Undertaking ... should its motion for summary judgment be unsuccessful " (my emphasis), thus perhaps intimating that the claim for restitution was not otherwise included in the pleading. 57Mr Gevaux filed an Amended Defence and an Amended Cross-Claim in March 2011. Under the former, Mr Gevaux does not admit that clause 10.6 of the Award is fully or accurately set out in the pleading but does not appear to deny that its effect is that members have an entitlement only to one disability/disablement benefit under that Award. The Amended Defence then pleads (in place of the broad range of allegations initially contained) simply a breach of a duty of care allegedly owed to Mr Gevaux in making the payment of the First Sum (in circumstances where it is said that the Crown knew or should have known by reason of Mr Gevaux's psychological injuries and condition and the fact that he was not represented that there was a real risk that he would dissipate or disperse or dispose of those funds) and in the alternative a claim in contributory negligence (that the Crown is the author of its own loss). (There is a real question as to whether those matters are properly the subject of a defence, as opposed to a cross-claim, and, in fact, they constitute the substance of the Amended Cross-Claim that was filed at the same time.) 58In further answer to the claim, Mr Gevaux relies on the Deed as a full and complete defence to the Crown's claim in these proceedings and maintains that the Amended Statement of Claim does not disclose a cause of action known to law (these seemingly being the bases on which Mr Gevaux brought his own application in March 2011 for summary dismissal of the proceedings). 59The Amended Cross-Claim repeats much of the Amended Defence and then pleads the facts by which it is alleged that the Crown owed a duty of care (in effect, a duty to ensure that Mr Gevaux had legal representation in relation to his entry into the Undertaking and to require the payment of the benefits to Mr Gevaux to be made under some form of protective regime under which his opportunity to gamble them away would be diminished or eliminated). Unspecified damages are sought (and additionally or in the alternative, a sum equivalent to the total disablement benefit already paid to Mr Gevaux). 60As to the defence based on the Deed, there is a dispute between the parties as to the scope of the Deed (namely, as to whether it contains any release on the part of Mr Gevaux beyond the workers compensation matters and as to whether it operates as any form of release by the Crown). 61Counsel for Mr Gevaux, Mr Benson, submits (and the Amended Defence asserts, as noted earlier) that it operates to preclude any claim of the kind now made by the Crown for recovery of the First Sum (whether that claim be made in restitution as is now put or under the earlier Deed) though Mr Benson accepts that the release would also preclude the amended cross-claim his client wishes to bring if that be the case. Mr Benson thus contends that the effect of the Deed of Release is to leave Mr Gevaux entitled to the balance of the monies left in the Slater & Gordon trust account. 62Mr Hyde contends, on the other hand, that the Deed should be read down by the recitals so as not to include any claim relating to the First Sum and emphasises that the release is not a mutual release in any event. 63For the purposes of the present application, it is not appropriate for me to express any concluded view on the construction of the Deed in this regard. 64The proposed Second Amended Statement of Claim (apart from including paragraph [12A] to which I have referred above) in effect seeks to reinstate the claim earlier made by reference to the Undertaking (in response to the suggestion by Mr Benson that an Anshun estoppel might arise). This is done by paragraphs [13] and [14] of the proposed further amended pleading). 65As noted earlier, however, the summary judgment application is made in relation to the claim as presently pleaded (and without reference to the latest proposed amendments). 66Therefore, as to the restitutionary claim, although the Crown relies on Rule 14.12(1)(f) of the Uniform Civil Procedure Rules for the proposition that a short form claim for money had and received by Mr Gevaux to the Crown's use is permitted (and that it is not necessary expressly to identify this as a claim in restitution), that could only be the case if leave is granted to include paragraph [12A] in the pleading. Absent that paragraph there is no allegation in the pleading that the claim is for money payable to the Crown for "money had and received by the defendant for the plaintiff's use". That said, if the elements of that cause of action are (as Mr Hyde asserts) pleaded in paragraphs [1] - [12] then, having regard to the fact that the restitutionary claim has been identified since at least the commencement of the summary judgment application last year, there seems to have been no prejudice suffered by the defence in responding to that claim for the purposes of the present application. 67It may be said, however, that the absence of a reference to any claim in restitution in the pleadings has no doubt contributed to the confusion apparent during the course of the hearing of the present application as to precisely what was being alleged by way of the restitutionary claim (evident even in the closing submissions in relation to which of the two sums was the fund said to have been attorned). (In particular, Mr Benson submitted that the claim of money had and received was inconsistent with the response to particulars that had been provided and that, on the plaintiff's evidence the Crown, under the auspices of the NSW Police Force, paid over the money to Mr Gevaux to its own use (and thus there is no intervention of any third party). Mr Hyde says that this is a misapprehension of the way in which the Crown is in fact putting its argument - namely that the relevant payment was by First State Super. Such confusion would not have been possible had the claim been pleaded clearly in the first place.) 68In considering the restitutionary claim, Mr Hyde emphasises that the respective sums advanced to Mr Gevaux were from two different funds or sources: the first, by the New South Wales Police Force, and the second, by First State Super (through its agent MetLife), as the Police Force's insurer. The significance of that distinction is as to whether the payment of the relevant sum (the Second Sum) was made by the Crown (or an agent of the Crown) or was made by a third party. What is said to have been attorned and to give rise to the claim in restitution is the Second Sum (paid by First State Super and not by the NSW Police Force). Legal Principles 70The Crown accepts that it bears the onus of demonstrating that there is no triable or arguable issue in defence of the claim. It contends that there is no defence available to Mr Gevaux on any view of the facts. 71The applicable test was set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [129]: ... There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 72Mr Hyde notes that the cases recognise that the mere fact that a transaction or argument is complex, and may involve extensive argument, does not mean that a court is required to refuse a summary judgment application on that ground alone ( Dey v Victorian Railways Cmrs (1949) 78 CLR 62 at [91]; General Steel Industries Inc at [129]) and contends that the existence of a difficult question of law is not an insuperable barrier to the grant of summary judgment ( Wickstead v Browne (1992) 30 NSWLR 1; Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241). 73In the Court of Appeal, in Air Services Australia v Zarb [1998] NSWCA 7, Rolfe AJA, with whom Priestley JA agreed, quoted (at p 16) the following with approval from Barwick CJ's judgment in General Steel : More recently in Webster & Anor v Lampard (1993) 177 CLR 598 Mason CJ, Deane and Dawson JJ reinforced the rigorous test stating, at p602. "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried'." ... The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241. and to what Kirby P (as his Honour then was) had said in NRMA Insurance Limited , with whom Powell JA had agreed: Nevertheless, the more complex and arguable is the legal point, and the more dependent it may seem to be upon debatable factual premises, the less likely is it that the peremptory relief sought by a party will be appropriate to the circumstances of the case, particularly where it would lead to the consequence of terminating proceedings altogether, or terminating them forever against one party. ... Unless the remedy is effectively confined to cases 'for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile', it would have the consequence of substituting summary judicial impression for determination on the merits, having heard both evidence and argument in the normal way of our courts. 74In Peter Kent Development Pty Ltd v The Australia and New Zealand Banking Group Ltd , [1980] NSWSC 1, considering an application for a stay or summary judgment under the then rule permitting such relief where, inter alia, no reasonable cause of action is disclosed, Hunt J noted that evidence was admissible under the inherent jurisdiction and relevant in order to demonstrate that the facts, rather than the pleading, did not disclose a cause of action or a defence and that the rule in question merely reflected that practice. Therefore, on a summary judgment application regard may be had not simply to the pleading but to the facts disclosed or asserted in the evidence then before the court. 75Reliance is placed in the present case by Mr Hyde on the elements recognised by Goff & Jones, The Law of Restitution (6th edn) as necessary to be established for a claim of attornment in respect of money (that being the claim here said to be raised by the facts alleged in the pleading). 76At [28-003], the learned authors (commenting that the law cannot be regarded as settled in the area of assignments and attornment of moneys) suggest that the following conditions must be satisfied before a plaintiff can succeed in a claim to money in the hands of the defendant based on an act of attornment: (1) There must be a "fund" in the defendant's hands. ... (2) A third party, from whom the defendant received the "fund" or to whose use he held it, must have requested the defendant, either before or after the "fund" reached the defendant's hands, to hold it to the plaintiff's use. (my emphasis) (3) The defendant must have assented to hold the "fund" to the plaintiff's use, and such assent must have been communicated to the plaintiff by the defendant or his authorised agent. In other words, the defendant must have "by some act attorned" to the plaintiff. 77The authors note that attornment creates a right of property in a specific asset and hence express the view that the plaintiff, to whom the holder of a fund has attorned, is entitled in equity to the fund. 78It is contended by Mr Hyde that an action for money had and received is thus available to the Crown in circumstances where Mr Gevaux has received money which is acknowledged to be money of a third party, namely the New South Wales Police Force. However, it is important to note that it is the payment of the Second Sum (not the First) that is said to have been the subject of attornment (to the extent of the monies necessary to reimburse the NSW Police Force for the payment of the First Sum). (Hence the point raised in submissions by Mr Benson - that there can be no attornment to the plaintiff where the payment in question is a payment by the plaintiff itself - does not apply.) 79Reliance is placed by the Crown on the following circumstances: that there is only an entitlement to a single payment under the Award; that Mr Gevaux, in his emails to the Commissioner on 19 June 2009 and to Ms Williams (in the Police Force), acknowledged that he was required to repay the New South Wales Police Force the sum of $257,587.20 (referring to funds held on a fixed term deposit which was to mature at the end of December 2009); and that this was at or about the time that Mr Gevaux received the Second Sum from First State Super. 80Mr Hyde submits that each of the three conditions referred to in Goff & Jones is satisfied in the present case: first, the existence of a "fund" in the hands of Mr Gevaux (namely, the second benefit of $500,000); second, the existence of a third party (First State Super) from whom Mr Gevaux received the "fund" (who it is said was aware that Mr Gevaux was required to make a repayment of the First Sum to the New South Wales Police Force); and, third, that Mr Gevaux had assented to hold the "fund" to the Crown's use, as acknowledged in the said emails. 81Reliance is placed on Dellas v Kourtessis [1962] VR 456 as authority for the proposition that once a defendant has communicated with a plaintiff admitting that the defendant has money in its hands with a direction to pay it to the plaintiff, and has expressly or impliedly promised to pay it, then defendant thereafter holds the money to the use of, or as the agent for, the plaintiff and is liable in the amount so held (whether or not there is privity of contract between the respective parties). 82Both Goff & Jones and Little J in Dellas (at [460]) refer to the judgment of Blackburn J in Griffin v Weatherby & Henshaw (1868) LR3QB 753: Ever since the case of Walker v Rostron (1842) 9 M.&W. 411, it has been considered as settled law that where a person transfers to a creditor on account of a debt, whether due or not, a fund actually existing or accruing in the hands of a third person, and notifies the transfer to the holder of the fund, although there is no legal obligation on the holder to pay the amount of the debt to the transferee, yet the holder of the fund may, and if he does promise to pay to the transferee, then that which was merely an equitable right becomes a legal right in the transferee, founded on the promise; and the money becomes a fund received or to be received for and payable to the transferee, and when it has been received an action for money had and received to the use of the transferee lies at his suit against the holder." 83In summary, the receipt of the Second Sum from First State Super (coupled with the said acknowledgment by Mr Gevaux of an obligation to repay the Crown, standing in the place of the NSW Police Force) is said to give rise to a restitutionary claim to recover the First Sum (owing under the Undertaking, but that deed not being relied upon for the purposes of this summary judgment application). The Crown seeks to recover "an amount representing the First Sum" out of the Second Sum, rather than some fund physically in the hands of Mr Gevaux, as money had and received to the use of the Crown. (At first blush, however, if all that remains are the proceeds of the workers' compensation settlement, then what is sought is to recover out of those other proceeds - not suggested to have been the subject of any attornment - the amount referable to the First Sum by reference to an attornment of the fund constituted by the Second Sum - which raises some doubt as to whether the factual underpinning for the attornment claim can be made out, at least insofar as it relies on the defendant continuing to hold the relevant fund the subject of the attornment). 84Leaving aside the question as to who is the proper plaintiff, it would therefore seem that to fall within the attornment of money cases one has to infer a request by First State Super (when making the payment of the Second Sum or at some time after its receipt and while it was held by Mr Gevaux) that part of that "fund" would be retained and used to reimburse the NSW Police Force (or to meet Mr Gevaux's obligation under the Undertaking or Award, assuming the latter does impose such an obligation as opposed to amounting to a recognition of the NSW Police Force's entitlement to claim it back) and to find an assent by Mr Gevaux that he would do so. 85As to the position of First State Super, awareness by First State Super that the Award contemplates only one disability benefit (or even that there might be a contractual or Award obligation to make a repayment of one of the two benefits received) does not of itself necessarily amount to a request by First State Super that such repayment be effected. Therefore if a request or implied request by the party making the payment is necessary for there to be a valid attornment (which is what the analysis in Goff & Jones suggests), then there is room for doubt on this element of the cause of action. 87As to the need for assent by Mr Gevaux, Mr Hyde submits that, in the circumstances, it is highly unlikely that Mr Gevaux was not aware of his obligation to repay the New South Wales Police Force on receipt of the Second Sum. (That may or may not be the case depending on Mr Gevaux's mental condition at the time he signed the Undertaking and at the time he received the Second Sum - it seems to me that the evidence suggests that there could well be some doubt as to what Mr Gevaux in fact did understand at the time.) 88Mr Hyde also relies upon the admission by Mr Gevaux in his defence as to the repayment of $1,000.00 pursuant to the demand as, is in effect, an acknowledgment of a requirement to repay that amount (as well as the express acknowledgements in the email correspondence). Again, as I understand it, these are matters that Mr Benson would assert cannot be relied upon as a binding admission due to Mr Gevaux's state of mind at the time. 89It is submitted by Mr Hyde that this is a case within the words of Lord Mansfield in Moses v Macferlan (1760) 2 Burr 1005 where Mr Gevaux "is obliged by the ties of natural justice and equity to refund the money." However, that submission presupposes Mr Gevaux's capacity to understand and agree to the request or requirement that he refund the money (at least where the claim is based on an attornment of the funds received by him by way of the Second Sum). 90To the extent that it is suggested by Mr Benson that the claim for money had and received is raised for the first time in the written submissions dated 12 April 2011 (even though I accept that there is no express statement of a claim for 'money had and received by the Defendant for the Plaintiff's use' in the pleading presently before me), it seems to me that a claim of this kind was articulated in the course of argument when the hearing of the summary judgment application commenced and was drawn to the attention of the defendant at least in oral submissions. Therefore, the complaint in this regard (and the complaint as to the response to particulars) seems to me to be of a technical kind. 91Mr Benson maintains that there is an arguable defence to any claim based on the Undertaking (but notes, in any event, that such a claim has been withdrawn). In relation to the restitutionary claim now articulated, he maintains that it is not sustainable where the payment sought to be recovered was not made under any mistake or duress and where there was no more than an expectation of repayment. (It is said that the Award does not impose any obligation to repay the amount.) (Mr Benson cites Lord Buckmaster in Considine v Mclnerney (1916) 2 AC 162 at [170], that "...the expectation, though it might be relied on with full certainty, was none the less not a legal right, and no claim for it could be enforced by legal proceedings." Those matters, however, do not address the attornment claim as such. 92Mr Benson relies also on the Deed of Release as precluding the claim in restitution. 93As far as the arguments based on the Deed of Release are concerned, that is a question of construction of the Deed of Release having regard to the principles articulated in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 . In Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112, the High Court considered the question of the construction to be placed on general words in a release, noting at [125] that from a very early time the Court of Chancery applied its special doctrines to the unconscientious reliance upon the general words of a release and, at [131], the application of the prima facie canon of construction (qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument) though noting that this may also be affected by the general tenor of the relevant deed. The Court noted that prima facie a general release should be read as confined to the matters forming the subject of the disputes which the deed recites. Those principles of construction have been adopted and affirmed in various other cases (including by way of example, Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, per Kirby P (at [43] - [44]) and GA Listing & Maintenance Pty Ltd v Francipane (unreported, per Giles J, 23 September 1994 at [204]) 94I am by no means satisfied that there is an obvious defence to the claim by the Crown based on the combination of the recitals and clause 6 as contended by Mr Benson. However, I cannot dismiss it as so hopeless as to be unarguable (in light of the argument that it must have been contemplated that there would be some claim that the Crown might have that was to be resolved as part of the resolution of the disputes recorded in the recitals, since otherwise there would be no need to plead the deed in bar to anything). Therefore, I would not have acceded to a summary judgment application by Mr Gevaux, had it been pressed, based on the Deed. By the same token, while I consider that it is reasonably arguable that the release by Mr Gevaux extends to complaints as to breach of duty or the like, that is not so obvious as to be a foregone conclusion and, in any event, I am not persuaded that this would preclude Mr Gevaux from resisting the attornment claim. 95There is also a question as to the significance of the fact that the moneys paid to Mr Gevaux by way of benefits (both the First and Second Sum) seem now to have been dissipated. 96Generally, restitutionary claims are claims in personam (Mason and Carter, Restitution Law in Australia (1995) at [321]; Goff and Jones, The Law of Restitution ) and hence it is usually sufficient (in the absence, say, of a change of position to defence) to show that the benefit (the subject of the restitution claim) was received by the defendant and that its retention is unjust (by reference to certain accepted and recognised 'unjust factors'). 97In relation to a restitution claim relating to payment of money, it is thus said to be generally unnecessary for the plaintiff to establish that the monetary benefit accrued to the defendant is identifiable in the hands of the defendant at the time of the hearing ( Restitution Law in Australia at [321] - [322]). The order for restitution is simply for the payment of an equivalent sum. 98In Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548, in the context of an innocent respondent becoming unjustly enriched through receipt of the plaintiff's money from a third party, the House of Lords stated (at [572]) that: ... at common law, property in money, like other fungibles, is lost as such when it is mixed with other money ... I should add that, in the present case, we are not concerned with the fact that money drawn by Cass from the solicitors' client account at the bank may have become mixed by Cass with his own money before he gambled it away at the club. Lord Goff stated (at [27]) that: So, in the present case, the solicitors seek to show that the money in question was their property at common law. But their claim in the present case for money had and received is nevertheless a personal claim; it is not a proprietary claim, advanced on the basis that money remaining in the hands of the respondents is their property. (my emphasis) 99In Re Goldcorp Exchange Ltd; Kensington v Liggett [1995] 1 AC 74, the Privy Council stated (at [102]) that: Whilst it is convenient to speak of the customers "getting their money back" this expression is misleading. Upon payment by the customers the purchase moneys became, and rescission or no rescission remained, the unencumbered property of the company. What the customers would recover on rescission would not be "their" money, but an equivalent sum. 100In Martin v Pont [1993] 3 NZLR 25, Tipping J stated (at [30]) that: As the claim is personal (in personam), and not proprietary (in rem), it is not necessary that the money still be held by the defendant. 101Therefore, subject to the restitutionary defence of change of position, where the claim is in personam an order for restitution may be made even though the money the subject of the claim has been dissipated. 102However, it has been recognised that on occasion restitutionary claims may be characterised as proprietary in nature. In his article, 'Proprietary Restitution: unmasking unjust enrichment' ((2001) 117 Law Quarterly Review (UK) 412), Professor Andrew Burrows distinguishes between personal restitutionary remedies which operate to vindicate property and proprietary remedies: the former being where the defendant received property (including substitute property) that, at the time of receipt, belonged to the plaintiff; and the latter where the defendant still has the property, or its substitute, belonging to the plaintiff (citing Graham Virgo, The Principles of the Law of Restitution (1999)). 103The present claim for restitution relates not to a sum of money received by the defendant from the plaintiff (or retained by the defendant but, at least absent the attornment, 'belonging' to the plaintiff) but, rather, to a sum of money received by the defendant from a third party (namely, First State Super, through its agent MetLife) that is said to have been the subject of an attornment with the result that the money is said to have been held "to the plaintiff's use". 104In The Law of Restitution, the learned authors state at [28-003] that (in contrast to a personal claim) attornment creates a right of property in a specific asset (making an analogy with bailment cases and citing Laurie and Morewood v Dudin & Sons [1926] 1 KB 223). If the claim in restitution claim is a proprietary claim in relation to a specific fund, then the fact that the fund has been dissipated by the defendant by the time of the hearing, then the proprietary claim must logically fail and the plaintiff would be left to a claim in damages. 105There seems, therefore, to be room for argument as to whether the present cause of action in restitution can be maintained now that the fund said to have been attorned has been dissipated. Conclusion 106Although the Amended Statement of Claim does not presently plead in clear terms a cause of action in restitution, I accept that the facts pleaded in paragraphs [1] - [12] may permit the conclusion as a matter of law that there is a claim in restitution (and I do not consider that the fate of the present application should rest on the technicality of the manner in which it is presently pleaded having regard to the fact that Mr Hyde has for some time made it clear that the Crown is seeking to maintain a claim in restitution and seeks leave to clarify this in the pleading). 107However, when considering the elements for a claim for attornment of a monetary fund, as set out in Goff & Jones , there is in my view room for doubt as to whether there should be imputed to First State Super any request that Mr Gevaux hold part or all of the Second Sum for the purpose of the repayment to the Crown (since it is equally possible that First State Super made the payment with no expectation as to what was in due course to happen or simply leaving it to the Crown to take whatever steps it wished in relation to recoupment of the First Sum). Similarly, the acknowledgment by Mr Gevaux as to the repayment of the First Sum (by reference to the moneys held in the term deposit) and the payment of the $1,000 are not necessarily matters in response to any request by First State Super (assuming that such a request be necessary, as opposed to there being simply a need to establish an assent by Mr Gevaux to the attornment of the fund then in his hands). 108Further, to the extent that Mr Benson raises issues as to the capacity of Mr Gevaux to consent to such an arrangement (or to make an informed consent as to such an arrangement), though these are not pleaded as such in the Amended Defence, it seems to me that sufficient doubt is thereby cast on the Crown's claim so as to give rise to a triable or arguable defence (based on what is conceded by the Crown to be one of the necessary conditions for a valid attornment - agreement by the party in receipt of the fund). 109I accept that the defences currently pleaded (breach of duty/contributory negligence) even assuming them to be properly a matter of defence rather than of cross-claim, are not recognised defences to a money had and received claim in restitution (Bullen & Leake & Jacob's Precedents of Pleadings (16 th edn) list the accepted defences to such a claim as being denial of receipt of the money or the existence of the facts which are alleged to make such a receipt one to the use of the plaintiff.) Mr Benson conceded that it would be novel to suggest that such a defence was properly one to a restitutionary claim of this kind. Therefore, had the defence (or the defence disclosed by the asserted facts) rested on the breach of duty/contributory negligence argument per se, then I would have been persuaded that there was no arguable defence to the attornment claim. 110After some hesitation, I am not persuaded that the Crown has satisfied what is recognised to be a heavy burden on a party seeking summary judgment. A very clear case is required and the power is one that is said should only be sparingly used ( Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at [91]; General Steel ; Webster v Lampard (1993) 177 CLR 598 at [602] - [603]; Cosmos E-Commerce Pty Ltd v Sue Bidwell Associates Pty Ltd [2005] NSWCA 81 at [37]-[38] as cited in Hannon v Afro Pacific Capital Limited [2009] NSWSC 564.) 111The question whether there is evidence of facts on which the Crown's claim is based is largely satisfied (leaving aside what inferences should be drawn from those facts). However, I am not satisfied that there is no arguable or triable issue in defence of that claim which is disclosed on the evidence (namely, a defence based on incapacity to consent to an attornment, even though such a defence has not been pleaded as yet). 112Therefore, for the reasons set out above, I dismiss the application for summary judgment. 113As to the amendment application, that was not the subject of argument before me (pending the determination of the summary judgment application). However, it is difficult to see why it would not be appropriate at this early stage of the proceedings to grant the Crown such leave in order to ensure that the real issues in dispute are properly pleaded (and for Mr Gevaux properly to plead the matters on which he relies for his Defence and Cross-Claim, there having been some circularity in that regard - particularly on the standing issue which was raised again at the close of oral submissions though not the focus of argument in the written submissions served for the April hearing). 114Subject to considering any submissions to the contrary that the parties may now wish to raise, it therefore seems to me that orders should be made to the effect that the Crown have leave to file the Second Further Amended Statement of Claim. I am also minded to refer the matter to the expedition list for determination as to whether it should be expedited having regard to the presumably dwindling fund held in the Slater & Gordon trust account (having regard to the permitted deductions therefrom and the cost of the likely cost of the proceedings to date). I will hear Counsel as to this and as to the question of costs of the present application. Orders 1.I dismiss the Crown's summary judgment application.