22 Whereas previously no particulars were provided to the allegation in SOC[110], RDASOC[100] now incorporates three tables under the heading "Particulars of the Insolvent Debts". Information is included in those tables under the following headings:
(1) Table 1 - "ATO Running Balance Account" with entries in columns marked "Effective date", "Transaction description", "Debit amount", "Credit amount" and "Balance". The transaction descriptions given include "carried forward balance", "General Interest Charge (GIC)", "Payment", "Original Activity Statement for period …", "PAYG Withholding", "GST", "Amended general interest charge (GIC)", "Penalty for failure to lodge…", and "Remission of penalty for failure to lodge …";
(2) Table-2 - "Superannuation Guarantee Charge" with entries in columns marked "Date", "Amount" and "Reason". There are two rows with the Date entries for each row being "1 July 2014 to 30 September 2014" and "1 October 2014 to 31 December 2014" with Reason given in each row being "SGC"; and
(3) Table 3 - "Office of State Revenue Queensland" with entries in columns marked "Date", "Amount" and "Remarks". The remarks entries are "Periodic liability [Month year]" and "Final Liability 01/07/15 to 06/08/15".
23 To be clear, the tables are not numbered in the RDASOC - I have numbered the tables to facilitate ease of reference.
24 The relevant issue on the present application is whether RDASOC[100], including the particulars incorporated in the proposed amendments, sufficiently exposes the case that Kaushik must meet. As the dispute has narrowed, the pleading issue was limited to the allegation directed to insolvent trading. In order to understand the way in which that allegation is exposed in the pleading, it is necessary to have regard to the earlier allegations made against Kaushik. I will summarise the main aspects of the pleading against Kaushik before turning to consider whether leave should be given in respect of the "particulars to RDASOC [100]".
25 The relevant allegations against Kaushik are as follows:
(1) that he is a de facto (RDASOC [16(h)]) or shadow director of the Company (RDASOC [16(i)]);
(2) as such, he owes fiduciary duties to the Company including inter alia a duty to exercise his powers bona fide in the interests of the company as a whole (RDASOC [17(c)]) and to take into account the interests of the Company's creditors when the Company was insolvent, or approaching insolvency (RDASOC [17(d)]);
Initial Transfers
(3) that on 7 August 2015, he "and/or" Om Wati effected a series of transfers from the Company's accounts to an account of MI Stores (the Initial Transfers) in circumstances where MI Stores had no legal entitlement to receive the amounts transferred: RDASOC [60] to [62];
(4) By effecting the Initial Transfers, he procured a breach of trust by the Company as the funds were trust funds held by the Company: RDASOC [62A];
(5) the Initial Transfers were a breach of his fiduciary duty; he was in a position of conflict between his duty to the Company and his own interests and "the interests of MI Stores" and the Initial Transfers had the effect of placing the funds beyond the reach of the Company's creditors: RDASOC [62B];
(6) that the Initial Transfers were part of a dishonest and fraudulent design on the part of Kaushik to misappropriate trust property under the control of the Company and defeat its return to creditors: RDASOC [62C];
Execution of Trust Deed
(7) he breached his fiduciary duty in executing a trust deed allegedly dated 7 August 2015 but allegedly created on 10 August 2015 which purports to replace the Company as the trustee of the ND Stores Trust with ND Stores (NSW) and thereby placed trust assets of the ND Stores Trust under the control of ND Stores (NSW), without ND Stores (NSW) assuming any of the liabilities of the Company to its creditors: RDASOC [69] to [70B];
(8) the execution of the Trust Deed when he had earlier effected Initial Transfers was part of a dishonest and fraudulent design to misappropriate trust property under the control of the Company and defeat its return to creditors: RDASOC [70C];
Accolade Transfer
(9) On 18 August 2015, Kaushik effected a transfer from MI Stores Account in the sum of $747,038.55 to the Accolade (the Accolade Transfer): RDASOC [73];
(10) The Accolade Transfer was in breach of trust as the funds were the traceable product of trust property previously under the control of the Company in its capacity as trustee of the ND Stores Trust, at the time held on trust for the Company by MI Stores: RDASOC [73B], [74A(a)]; and
(11) the Accolade Transfer was a breach of his fiduciary duty owed to the Company and part of a dishonest and fraudulent design on the part of Kaushik to misappropriate trust property under the control of the Company and defeat its return to creditors for reasons which substantially mirror mutatis mutandis those alleged in respect of the earlier allegations: RDASOC [73A] to [74A].
26 The "equitable and accessorial claims" against Kaushik are then pleaded at RDASOC [98] as follows:
…. in making and/or procuring, and/or participating in:
(a) the Initial Transfers; and
(b) the Accolade Transfer,
and by executing the [trust deed], Kaushik:
(c) procured a breach of trust with respect to trust property of the Company; and/or
(d) breached the fiduciary duties he owed to the Company; and
…
(e) in committing each of these breaches, engaged in a dishonest and fraudulent design to misappropriate trust property under the control of the Company and defeat its return to creditors.
…
(mark up omitted)
27 For present purposes, the relevant allegations in relation to the claims for insolvent trading against Kaushik are as follows:
(1) Between 30 June 2014 and 7 August 2015 (Relevant Period) the Company incurred debts in the total sum of $1,228,628.23 (Insolvent Debts) to the Australian Taxation Office (ATO) and Office of State Revenue Qld creditors (Creditors): RDASOC [100];
(2) That he was a shadow and/or de facto director of the Company during the Relevant Period: RDASOC [101];
(3) Since 30 June 2014 and at all material times the Company was insolvent: RDASOC [102];
(4) The particulars to RDASOC [102] include:
…
(b) Non-payment of an increasing ATO Running Balance Account debt;
(c) A failure to comply with an ATO debt repayment plan;
(d) Non-payment of SGC liabilities subsequent to 30 June 2014;
(e) Unreported and unpaid OSR Qld Payroll Taxes;
…
(5) That he "was aware at all times during the Relevant Period that the Company was insolvent when the Insolvent Debts were incurred, or that the Company would become insolvent by incurring the Insolvent Debts": RDASOC [103].
(6) The particulars to RDASOC [103]:
(a) repeat RDASOC [16(g) to (i)] which particulars are highly generalised and limited only by reference to "all material times" which is not specified or otherwise defined but if used consistently in the pleading would appear to commence at the time the Company was incorporated on 20 May 2010 whereas the allegation in respect of de facto or shadow director is for a lesser period; and
(b) allege that "Kaushik's awareness of the Company's financial position, and that it was insolvent when the Insolvent Debts were incurred, or that the Company would become insolvent by incurring the Insolvent Debts, can also be inferred in circumstances where Kaushik must have had access to the Company's books and records that would have disclosed its financial position in order to be able to engage in the correspondence about the Company's legal and financial affairs with consultants, accountants, and revenue authorities as pleaded at paragraph 16(g) above" notwithstanding that the first particular given in respect of insolvency is that the Company failed to maintain adequate books and records for the purposes of s 286 of the Corporations Act 2001 (Cth): RDASOC[102], particular (a).
(7) In the alternative to RDASOC [103], that a reasonable person in the position of Kaushik would be aware that there were grounds for suspecting that the Company was insolvent at the time the Insolvent Debts were incurred or that the Company would become insolvent by incurring the Insolvent Debts: RDASOC [104].
28 On this basis it is alleged that Kaushik has contravened s 588G(2) of the Act in relation to the incurring of the Insolvent Debts and that pursuant to s 588M of the Act, the liquidator may recover from Kaushik, as debts due to the Company, an amount equal to the Insolvent Debts.
29 Relevantly, s 588G applies where at the time when the company incurs a debt, the company is insolvent, or becomes insolvent by incurring that debt, or by incurring at that time debts including that debt, and at that time there are reasonable grounds for suspecting that the company is insolvent, or would so become insolvent, as the case may be: s 588G(1). A person contravenes s 588G by failing to prevent the company from incurring the debt in circumstances where the person is aware at that time, or a reasonable person in a like position in a company in the company's circumstances would be so aware: s 588(2).
30 Relevantly, the critical elements of the cause of action in respect of a director for insolvent trading under s 588M are that a debt has been incurred by the company; at the time the debt was incurred, the company was insolvent; the creditor has incurred loss or damage "in relation to" the incurring of the debt; and the director contravened s 588G(2) or s 588G(3).
31 The defences available in respect of a claim for insolvent trading also require consideration to be given to the specific circumstances at the time each debt arose: see ss 588H and s 588GA.
32 A company incurs a debt when, by act or omission, it is rendered liable for a debt, even one imposed by a statute, and a debt may include a contingent debt: Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 2) [2020] FCA 717; 144 ACSR 347 at [137] and authorities cited therein.
33 When a debt is incurred for the purposes of s 588G will depend on the nature of the transaction involved. In the case of taxation liabilities, by analogy with s 588FA, a tax liability is a debt capable of being incurred within the meaning of s 588G: Sands & McDougall Wholesale Pty Ltd (in liq) v Commissioner of Taxation [1998] VSCA 76; (1999) 1 VR 489, [36] (Charles JA, Brooking and Kenny JJA agreeing). The Full Court of the Supreme Court of Western Australia, as it then was, held that liability for payroll tax can potentially constitute a debt for the purpose of insolvent trading: Commissioner of State Taxation (WA) v Pollock (1993) 12 ACSR 217, at 222 (Pidgeon J), at 230 (Ipp J with Wallwork J agreeing). Justice Ipp considered that payroll tax only becomes a 'debt' upon the expiry of the month in which the payroll tax is being incurred, because it is only at this time that the amount of payroll tax to be paid can be ascertained: Pollock at 232. Justice Ipp further held in Pollock at 234 that a contingent debt is capable of being a debt within the meaning of the relevant insolvent trading provision, however, he his Honour expressly did not make a finding as to whether and when a contingent debt to pay payroll tax could be incurred as a debt: at 235. Justice Ipp's finding was limited to a finding that it was reasonably arguably which was sufficient for reversing the strike out of the pleadings in that case. However, a company incurs a contingent liability for payroll tax upon employing an employee in any given month; by analogy, the liability for Superannuation Guarantee Charges would be incurred on each occasion that the company was obliged to remit the periodical payment: Pollock at 232. See also Yeo, in the matter of Bradi Transport Pty Ltd (in liq) v Sklenovski [2020] FCA 1540 [23] to [28].
34 Subsequent to the hearing of this application, the solicitors for Kaushik sent an email to my Chambers directing my attention to Copeland in his capacity as liquidator of Skyworkers Pty Limited (in Liquidation) v Murace [2023] FCA 14 at [19] to [26], which draws heavily on the analysis in Devine v Liu; Devine v Ho [2018] NSWSC 1453; 338 FLR 208; particularly at [37] to [38]. The solicitors for Kaushik had sought the applicants' consent to the communication, which had not been forthcoming. Subsequent to Kaushik providing a copy of the decision in Skyworkers, the applicants' solicitors forwarded to my chambers an email he had sent to Kaushik's solicitors in which he sought to distinguish the decision in Skyworkers. I have treated that letter as a submission.
35 The applicants submit that Skyworkers can be distinguished on the basis that it was concerned with the particularisation of debts incurred to unsecured creditors and was not relevant to the particularisation of the statutory debts pleaded in paragraph [100] of the RDASOC. Further, that the applicants' position in the present proceeding is distinguishable by the fact that the liquidator in this case relies on the "the ATO's formal proof of debt". They do not contend that Skyworkers, or Devine on which it is based, is wrongly decided.
36 I do not agree that Skyworker can be distinguished on the basis identified by the applicants.
37 The decision in Skyworker at [14] and [19] to [26] relevantly applies the analysis in Devine at [37] to [38]. The decision in Devine related inter alia to a claim from the Commissioner of Taxation for unpaid superannuation guarantee levy obligations in respect of which a proof of debt had been lodged by the Commissioner: [13]. The decision in Skyworker related inter alia to an unsecured debt to the Australian Tax Office. The principles articulated are based on an analysis of the relevant provisions and are not confined as submitted by the applicants.
38 The critical passage is as follows (Devine, [37] to [39]):
37. …the failure to plead when the debts were incurred is a fundamental flaw. The date on which the debt is incurred is an essential aspect of the claim. Unless that date is known, it is impossible to evaluate whether the Company was insolvent or whether the elements of contravention in s 588G are made out.
38. The question of when a debt is incurred may be a complex and contestable one. It is in my view essential that the Statement of Claim plead not only when it was that each debt was allegedly incurred but also how it was that the debt was incurred. The relevant contractual terms and the facts which give rise to the relevant debt should be pleaded so that they can be admitted or issue can be joined.
39 In respect of the application of the principle to the task of pleading, his Honour continued (at [39]):
39. It is not always necessary that this should be lengthy. In a case of goods sold and delivered or services supplied the debt will, in many cases, arise at the date of delivery: Australian Securities & Investments Commission v Plymin (2003) 175 FLR 124; [2003] VSC 123 at [517]. It should be possible to group claims of this type together and plead the incurring of the debts by reference to the dates the goods were delivered or the services were supplied, as the case may be, in tabular form. Where, as in this case, there are multiple claims for the employee claims may be more complicated, especially if the employees are contending that they have been underpaid for work actually done. But there seems no reason in principle why these too could not be pleaded in a tabular form.
40 Kaushik submits that the particulars proposed in the RDASOC should not be allowed for reasons which are predicated on an attempt to understand what is alleged in RDASOC[100] and is purported to be supported by the proposed incorporated particulars. I do not see any utility in reciting the attempt by Kaushik to follow through what RDASOC[100] as particularised is intended to convey. I will simply note that one of the functions which pleadings are intended to serve, supplemented by particulars, is procedural fairness by exposing the case which the respondent must meet. For reasons which will become apparent, I am satisfied that the inclusion of the particulars in RDASOC[100] does not adequately expose the case that Kaushik is required to meet in relation to the insolvent trading claims to discharge that function. Having reached that conclusion, it is not necessary for me to address whether the submissions made by counsel for Kaushik represent a real attempt to engage with the pleading, noting that the submissions rely on sections of the Act that are not directly relevant.
41 Kaushik's submissions on this issue focussed on the component of the Insolvent Debts (as defined in RDASOC[100]) described as "Insolvent Trading Claim - Kaushik ($)" being owed to a Creditor described as "ATO - Running Balance Account" in the sum of $682,031.87 and purportedly, particularised by Table 1. That amount of $682,031.87 equates to what is described in the allegation in RDASOC[100] as the "Debts incurred post 30 June 2014 ($)". The allegation in RDASOC[100] also includes reference to what is described as "Total Creditor Liability as at 7 August 2015 ($)" in the amount of "$681,951.46".
42 The allegation in RDASOC[100] is, to put it neutrally, opaque. The particulars which are proposed are in the form of what appears to be a reproduction of a statement of the ATO's running account balance (as provided for in s 8AAZC of the Taxation Administration Act 1953 (Cth)).
43 The "Total Creditor Liability as at 7 August 2015 ($)" of $681,951.46 in respect of the "ATO - Running Balance Account" is particularised by reference to the final particularised running account balance as at 20 August 2015, being a date after the end of the "Relevant Period" as defined. There is no entry in Table 1 with an effective date of 7 August 2015. The most recent entry in Table 1 before the end of the Relevant Period is an entry for 25 July 2015 in the sum of $492,639.57. The next date after 25 July 2015 is an entry with an effective date of 25 August 2015. There are three entries for 25 August 2015. Two of these entries increase the amount included in the column headed "Balance". The running account balance is increased to reflect a debit in respect of GST in the sum of $153,970 on 25 August 2025 and a further debit in respect of PAYG Withholding in the sum of $33,734, also on 25 August 2025. Following the entries for 25 August 2015, there is a debit entry in relation to GIC of $1,607.89 on 20 August 2025 with the result that the running account balance as at the effective date of 20 August 2015 is described as being $681,951.46.
44 The pleader alleges that the "Total creditor liability as at 7 August 2015" attributable to the "ATO - Running Balance Account" equates with the running account balance which includes "transactions" on that account which occurred on 20 and 25 August 2015. The rationale for this conclusion is not exposed and as a result the purported particularisation does not dispel the opacity of the pleading of the primary allegation.
45 The pleader alleges that the ATO - Running Balance Account debts incurred post 30 June 2014 amount to $682,031.87 and that this is the sum is a component of the "Insolvent Trading Claim - Kaushik ($)". Kaushik is left to guess on the critical issue of the timing of the alleged debts being incurred and the dates on which he is alleged to have known that the Company was insolvent. That is an essential flaw in the way the insolvent trading claim against Kaushik is pleaded: see Skyworkers at [23] to [24]. Further the basis of the $682,031.87 sum alleged is not exposed in the particulars which are put forth to substantiate this pleading. That said, Kaushik is not required to plead to the particulars to RDASOC[100]. The adequacy of the particulars, or rather the lack thereof, may result in Kaushik being left in a position where he does not admit or deny the allegation in RDASOC[100] because he does not follow the allegation made against him. To allow an amendment with that likely consequence would not be consistent with the overarching purpose. In this regard, I note that Kaushik has not presently applied to strike out SOC [110] and has pleaded to this allegation by pleading a general non-admission.
46 Having regard to the extant application for particulars of the earlier iteration of this paragraph of the SOC in SOC [110], and given that Kaushik's opposition to leave being granted is limited to the inclusion of the particulars to RDASOC[100], as a matter of case management and in order to avoid, to the extent possible within the Court's power, further interlocutory procedural applications, I propose to resolve the disputes in relation to this paragraph, including the extant dispute about the request for particulars of the paragraph, as follows.
47 I refuse the applicants leave to amend by including the proposed particulars of RDASOC[100]. I grant the applicants liberty to replead to include as part of the substantive allegations of fact, the dates on which each of the debts alleged to comprise the "Insolvent Debts" were incurred and how each debt arose. That pleading should make clear whether the allegation in RDASOC[100] is as to three single debts arising under the respective statutes or as a series of individual debts arising under the respective statutes giving rise to the cumulative totals alleged in RDASOC[100]. The pleading should further make clear the basis upon which the applicants allege the debts arose, whether that be as contingent liabilities or as debts due under the relevant legislation. To the extent that the applicants rely on statutory presumptions in respect of the alleged "Insolvent Debts" then the material facts relied upon so as to engage those presumptions must be pleaded.
48 I have not overlooked the applicants' submissions in which they relied on Owen as Liquidator of Davey SG Pty Ltd (in liq) v Davey, in the matter of Davey SG Pty Ltd (in liq) [2021] FCA 200 at [28] to [30] and Re Melbournehomes.com Pty Ltd (in liq) [2020] VSC 854; 356 FLR 390 at [42]. The submissions made in reliance on those authorities in the present context are superficial. I am not persuaded by them. Davey SG is a decision in respect of an application for judgment in default of an appearance. It is not apposite to the pleading issue before me. In the present circumstances, as I have already mentioned, the proposed pleading is opaque as to whether the "Insolvent Debt" is the series of singular debts or the aggregated total in respect of each discrete tax liability. The date(s) on and the manner in which the liability in respect of each debt is alleged to arise is not adequately exposed in the RDASOC. The observation in Re Melbournehomes at [42] upon which the applicants rely is context specific and it is principally concerned with matters of proof. It does not alter the conclusion I have reached in relation to the adequacy of the pleading of RDASOC [110] in satisfying the procedural fairness function.
49 If the applicants exercise the liberty to replead, then it is imperative that they pay close attention to observations made in Devine and Skyworkers. In this regard I also direct the applicants' representatives to the observations of the Full Court in Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102; 269 FCR 349 at [28] to [30] (the Court).
50 In the event that the applicants do not exercise the liberty to replead or replead in a way that is not adequate to expose the fundamental elements of the insolvent trading claim then the claim is at peril of being struck out on a future occasion.
51 I will make orders accordingly.
52 I now turn to the amendments in respect of which the Accolade Parties opposes leave.
53 Based on the FAOA the claim against Accolade, Reliance and Carmelo is one of "voluntary receipt" or knowing receipt of trust property being funds the subject of the Accolade Transfer, Reliance Transfer and Carmelo Transfer respectively. The paragraphs containing the allegations in relation to the Carmelo Transfer have been deleted in strikethrough from the RDASOC. The claim against Carmelo includes a further claim of knowing assistance in respect of the Accolade transfer and the Reliance Transfer.
54 The paragraphs to which objection is taken by the Accolade Parties were not revised in the RDASOC - these paragraphs are in the same form as in the DASOC that was current as at the date of the second hearing. Accordingly, I have considered the remaining disputed amendments, applying the principles identified above and having regard to the submissions made by the parties in relation to the DASOC.
55 The submissions advanced by the Accolade Parties, in writing and in oral argument, in respect of those paragraphs that were still in dispute after circulation of the RDASOC were directed to paragraphs 91 to 96, 97 to 99; 101 to 102; 100 to 100C and 103 to 103C.
56 It is not necessary to descend to the detailed critique of the pleading advanced by the Accolade Parties on this application at this stage. Many of those criticisms may well feature in any closing submissions made by the Accolade Parties, which is another way of observing that the submissions are a forceful attack on the merits of the claim pleaded against the Accolade Parties. This amendment application is not the occasion to be drawn into a detailed assessment of the strength of the applicants' pleaded claim. Provided that I am satisfied that the claim is not manifestly futile, which I am, my focus must be on whether the RDASOC fulfils the function that pleadings are intended to serve, including in respect of procedural fairness, such that leave should be granted to file and rely on it.
57 Save for certain narrow exceptions, the way in which this application has developed demonstrates that the Accolade Parties are sufficiently apprised of the claim against them to prepare a defence to the amended pleading. I am not persuaded to accede to the Accolade Parties' urging to refuse leave to amend and to deny the opportunity to replead. Nor am I persuaded to succumb to the hyperbolic entreaty to summarily dismiss the claim when the Accolade Parties have sought no such relief. The Accolade Parties have in fact filed defences to the existing SOC. Although, the manner in which the SOC has been drafted has given the Accolade Parties the opportunity to populate their defences with a blanket of non-admissions whereas a more focussed attempt at pleading would perhaps have resulted in the necessity for a more targeted defence, it is relatively clear that based on the RDASOC the Accolade Parties apprehend the claim made against them such that the dictates of procedural fairness have been met.
58 The applicants' approach to the amendment of the pleading and prosecution of this interlocutory application left much to be desired. It did not facilitate the objectives of modern case management or satisfy the overarching obligations of practitioners in proceedings before this Court. However, in circumstances where I am satisfied that, save for limited exceptions, the Accolade Parties know the claim they must meet and having regard to the existing attempts by the applicants to plead their claims, I fear that to grant the applicants a further opportunity to re-plead the large tranches of the proposed pleading to which the Accolate Parties oppose leave is likely to be productive of delay, wasted costs and is unlikely to result in a meaningful refinement of the real issues in dispute. For these reasons, on the conditions that I will now identify, I have concluded that it is in all parties' interests, and particularly in the interests of creditors of the Company, to grant leave to the applicants to file and rely on the RDASOC. I am also satisfied that to do so is consistent with the overarching purpose.
59 In allowing leave to file the RDASOC with the disputed amendments, I will afford the Accolade Parties the opportunity to request such particulars as are reasonably necessary to facilitate the filing of their defences. I will make that order in general terms. Without limiting the generality of that order, based on the submissions on this application, I would expect that particulars will be requested and supplied that expose the material facts relevant to allegations made in relation to the allegations about the Company divesting itself of property in the circumstances where it is alleged to have held the property as a trustee and where the relevant trust deed is alleged to have included an ipso facto clause and conferred a power on Kaushik as the sole unit holder to appoint a new trustee. I will make orders accordingly.
60 In making orders in relation to the provision of such particulars as the Accolade Parties reasonably require, I expect that the applicants through their representatives will engage in a meaningful way with any reasonable requests for particulars and not raise technicalities to avoid providing the particulars. In providing any particulars requested, the applicants must adhere to their obligation to clearly identify the legal elements of each claim and expose the allegations of fact required to establish each element. While it may not strictly be necessary to plead the legal conclusions that follow from the facts alleged, it is often convenient and consistent with the overarching purpose to do so.
61 There are three additional matters that were not canvassed by the relevant parties.
62 The first is that the Further Amended Originating Application (FAOA) includes a prayer for relief seeking a declaration that Carmelo holds property on trust on the basis of receiving the "Carmelo Transfer". As mentioned, the pleadings in respect of the "Carmelo Transfer" in the RDASOC have been deleted in strikethrough. It is unclear whether the claims in respect of the Carmelo Transfer are pressed. If the claim is not pressed the references to the Carmelo Transfer in the FAOA must be deleted. I will order that the parties submit agreed short minutes to address this issue.
63 The second issue is that a declaration of an institutional constructive trust in respect of MI Stores is sought in circumstances where MI Stores is not a party. I will order the parties to submit agreed short minutes to address this issue and in particular, whether there is any reason why that part of the FAOA should not be struck out.
64 The third issue is that a declaration of constructive trust is sought against Accolade, Reliance and Carmelo over "any funds in [their respective] possession, custody or control" on the apparent basis they each have allegedly received trust property. These claims for relief appear to be cast more broadly than the pleaded claim for tracing. I will order the parties to submit agreed short minutes to address this issue and in particular, whether the FAOA is proposed to be amended.