BETWEEN : EDWARD JAMES BRIDE AS TRUSTEE OF THE PINWERNYING FAMILY TRUST

WENDY MARGARET BRIDE AS TRUSTEE OF THE PINWERNYING FAMILY TRUST

Application under O 63 r 4(1) for extension of time to appeal against summary judgment - Application not properly brought - Summary judgment striking out plaintiff's claim a final judgment - Leave to appeal unnecessary - Application dismissed but leave granted to renew application on same papers supplemented as necessary - Turns on own facts

Supreme Court Act s 79(1)(a)

Bride v Hammond Fitzgerald & King, unreported; SCt of WA; Library No 930303; 6 May 1993

Bride v KMG Hungerfords, unreported; SCt of WA; Library No 8903; 10 June 1991

1 IPP J: This matter forms part of the long history of litigation in which the applicants have been embroiled and in respect of which very many judgments have been handed down by this Court. I do not propose to recount the complex facts in any detail. Suffice it to say that it concerns an action brought by the applicants in their capacity as trustees of the Pinwernying Family Trust. They claim damages for various kinds of alleged wrongful conduct on the part of the respondent. In the statement of claim the applicants allege that they were the owners of a certain business and also of plant, machinery and stock used in connection with that business. They also allege they were the owners of certain parcels of land. They allege that due to the wrongful conduct of the respondent they lost the business, the assets relating thereto and the various parcels of land, and claim damages for those losses.

2 The action to which this appeal relates was commenced nearly 10 years ago. Since then the applicants have brought similar actions against other persons, in which the same damage has been claimed. There have been a number of judgments delivered by members of this Court dealing with the issue whether the assets alleged to have been lost were owned by the applicants personally or in their capacity as trustees of the Pinwernying Family Trust. This question was important as the right to claim damages for loss of the assets was dependant on who owned them.

3 The present action is no different to the others in this respect, and there has been some vacillation on the part of the applicants as to whether they should sue in their personal capacity or as trustees or both. In 1997 the applicants applied to the learned Master to be joined as parties to their action in their own right. At the same time, the respondent applied for summary judgment against the applicants. The learned Master dismissed the applicants' application for joinder and upheld the respondent's application for summary judgment. The present application relates to these decisions of the Master.

4 The learned Master delivered his reasons for judgment on 22 August 1997. It was only nearly two years thereafter, on 12 February 1999, that the applicants applied for leave to appeal against the learned Master's decisions. The application was brought by a document entitled "application for leave to appeal", in which the applicants sought the following relief:

"1. That this matter be forthwith restored to the civil list for an expediated (sic) trial.

2. That this matter be otherwise referred to a directions hearing of the Full Court.

3. Any other order that this honourable Court deems fit.

4. That the costs of this application be in the cause."

5 As I understood the argument of counsel for the respondent, he understood the application for leave to have been made under O 63A on the basis that the orders appealed against were interlocutory. The first named applicant, Mr Bride, had filed an affidavit stating that he had never intended to abandon his appeal. This was construed by counsel as a reference to O 63A r 5(2) which provides for the discontinuance of an appeal under O 63A that is not entered for hearing within seven days of the direction hearing. Counsel submitted that as the appeal was out of time it was not open for the Court to grant leave (see O 63A r 5(2)).

6 However, I think that the application is not made under O 63A but under O 63, and the applicants are seeking an extension of time under O 63 r 4(1). By the summary judgment, the learned Master ordered that the applicants' claim against the respondent be struck out and there be judgment for the respondent. He thereby finally determined the rights of the parties and the principal cause pending between them. His order was therefore a "final judgment" within the meaning of s 79(1)(a) of the Supreme Court Act: Hunt v Knabe (No 2) (1992) 8 WAR 96. Thus, leave to appeal against the summary judgment decision was unnecessary.

7 The applicants are substantially out of time for appealing under O 63 and they can only appeal if the Full Court or a Judge allows them an extension of time under O 63 r 4(1). It appears that the explanation for the delay was an oversight on the part of the applicants who say, in effect, that they were overwhelmed by the extensive litigation in which they have been involved.

8 Counsel for the respondent objected to the application being dealt with on this basis as he said he had not appreciated that the purpose of the applicants was to seek an extension of time under O 63. He said that he was not ready to deal with such an application. In my view, this attitude is understandable. The "application for leave to appeal" and the supporting documents simply do not indicate that the applicants are applying for an extension of time under O 63. The respondent has not had a proper opportunity either to file affidavits in reply or even to argue the matter on a fully informed basis. For that reason I would not grant the application.

9 In case, however, an application for an extension of time within which to appeal is subsequently brought in proper form, I should say something about the merits of the appeal.

10 I shall first deal with the order for summary judgment. The learned Master granted summary judgment because he said that the issues concerned had "all been decided by courts in the past". He said:

"Turning now to the application for summary judgment, this too seems to be covered by two previous decisions of this Court. In Bride v KMG Hungerfords, unreported; SCt of WA; Library No 8903; 10 June 1991 Murray J put the position as follows (at p40):

'It is my conclusion upon all the evidence that the business with which this case is concerned was in its assets owned and operated by the plaintiffs in partnership and not as trustees for the Family Trust. That being the case they lack standing for their claim in respect of the loss of the business and its income for the claimed period and in respect of the family home and rural land owned by Mr and Mrs Bride personally'.

Scott J came to the same conclusion in Bride v Hammond Fitzgerald & King (CIV 2078/88). There is essentially no difference between this claim and the claim in each of these two earlier cases. Put a slightly different way, two judges have already determined the proper parties to sue for relief such as that claimed in this action are Mr and Mrs Bride. It is not the trust. I am not in a position to reach a different conclusion."

11 In my view the learned Master has, with respect, lost sight of the fact that the decisions of Murray J and Scott J were concerned only with the business that had been carried on by the applicants, and the assets of that business. For example, Murray J, after pointing out that the assets of the business with which the case before him was concerned was "owned and operated by the plaintiffs in partnership and not as trustees for the family trust" proceeded:

"That being the case, they lack standing for their claim in respect of the loss of the business and its income for the claimed period and in respect of the family home and the rural land owned by Mr and Mrs Bride personally."

Nothing that the learned Judge said had anything to do with the land owned by the applicants as trustees of the Pinwernying Family Trust.

12 Scott J dealt with the same issues. His Honour also found that the assets of the business carried on by the applicants were owned by them personally, and not by them as trustees for the family trust. His Honour, however, pointed out:

"The assets which the partnership was leasing from the Pinwernying Trust would therefore be both the land upon which the factory was situated and the fixed plant and equipment which, by virtue of having been affixed to the land would have become the property of the trust in any event."

13 Nothing said by Murray J or Scott J could be construed as precluding the applicants, as trustees of the Pinwernying Family Trust, from suing for loss of the assets owned by them in that capacity, and those assets, as their Honours recognised, concerned certain land and the structures that were affixed thereto.

14 It is not entirely clear on the papers before this Court precisely what land was owned by the applicants, as trustees of the Pinwernying Family Trust, for the loss of which they are claiming damages. It does appear that in that capacity they owned at least certain parcels of land upon which certain oat mill and stockfeed plants were erected and also land which contained a vineyard and orchard. They may also have owned other land, including land on which a winery had been constructed.

15 The point is that, at least in regard to the land owned by the applicants as trustees of the Pinwernying Family Trust (and the structures affixed thereto) they may have suffered damage in consequence of their loss. The respondent is not entitled to summary judgment in respect of the claims for that damage. Further, in the absence of clear evidence as to which land was owned by the applicants as trustees of the Pinwernying Family Trust, it is not possible to determine which part of the applicants' statement of claim should be struck out on the ground that it represents a claim for damages for loss of assets owned by the applicants personally.

16 I turn now to the learned Master's decision concerning the proposed joinder of the applicants, personally. I shall not comment on the question whether that decision was final or interlocutory (no argument having been addressed on this question, which may be open to debate). Whatever the position may be in this regard, however, there can be no doubt that the learned Master was entirely correct in the decision that he made. In Bride v Peat Marwick Mitchell, unreported, SCt of WA; Library No 960565; 25 September 1996 Heenan J concluded, in regard to a similar application made by the applicants in that case (that is to join the action as plaintiffs in their own right):

"It was not until 13 January 1995 that the appellants obtained an assignment of the relevant chose in action from their trustee in bankruptcy. The plain, inescapable, fact is that at the date of issue of each of the writs they were not entitled to bring the present actions in their personal capacity. As the deed of assignment has no retrospective effect, the writs, if issued by the appellants in their personal capacity, would have been set aside because the appellants had no standing to sue."

17 The applicants had been declared bankrupt on 6 September 1984. Their rights in regard to their personal assets vested in their trustee. The writ was issued in 1989; the applicants had then no standing to sue for the loss of assets owned personally by them. On 13 January 1995 their trustee in bankruptcy assigned to them personally any rights of cause of action of the bankrupt estate against the respondent in this case. However, that assignment was not retrospective. This resolves the issue.

18 For the reasons I have expressed I would dismiss the application, but grant the applicants leave to bring an application on the same papers, supplemented as they think fit, for an extension of time within which to appeal under O 63.

19 WALLWORK J: I agree with the reasons for judgment and the orders proposed by Ipp J.

20 PARKER J: I have had the advantage of reading the reasons published by Ipp J.

21 I agree with those reasons and with orders proposed.