"1. The Plaintiff, being the only surviving child of the registered proprietor of Lot 44 on Diagram 22759 and being the whole of the land contained in Certificate of Title Volume 1211 Folio 98 and known as 21 King George Street, Victoria Park ('the property'), and having been promised that the property would be hers one day, and having relied upon that promise to her detriment, claims that she is the beneficiary of an express trust and/or the beneficiary of a constructive trust in respect of the property.

AND THE PLAINTIFF CLAIMS:

1. A declaration that the Defendant holds the property on trust for the Plaintiff subject to the Defendant's life interest therein;
2. An order that the Defendant do all acts and things necessary to cause the property to be transferred to the Plaintiff subject to the Defendant's life interest therein;
3. Consequential orders;
4. Costs."

4 On 13 September 2004, and pursuant to case management directions made on 2 September 2004, the respondent filed an amended statement of claim in which she pleads, relevantly:

(a) was born on 8 September 1949.

(b) is the sole surviving child of the Defendant who was born on 27 September 1927 and Joseph Christian (In de) Braekt who was born on 29 September 1920 and died on 22 July 1989 ('the Plaintiff's father').

1. The Defendant has, since 1960, been the sole registered proprietor of Lot 44 on Diagram 22759 and being the whole of the land contained in Certificate of Title Volume 1211 Folio 98 and known as 21 King George Street, Victoria Park ('the Victoria Park property').
2. In 1984 the Plaintiff was the sole registered proprietor of a property at 26 Getting Street, Lathlain Park being Lot 315 on Plan 6215 and being the whole of the land contained in Certificate of Title Volume 1218 Folio 439 ('the Lathlain Park property').
3. Prior to mid 1984, the Plaintiff's father was ill with emphysema and depending upon the state of his health required varying degrees of assistance, including trips to doctors and hospital.
4. In or about mid 1984:

(a) In the presence of the Defendant, the Plaintiff's father requested the Plaintiff to sell the Lathlain Park property and to come to live with the Defendant and the Plaintiff's father at the Victoria Park property.

(b) In the presence of the Defendant, the Plaintiff's father told the Plaintiff that she did not need her own house as their house (the Victoria Park property) would be the Plaintiff's one day.

(c) The Plaintiff's father, in the presence of the Defendant, told the Plaintiff that she needed to be there (in the Victoria Park property) with the Defendant for those times when he fell ill.

(d) Having been present when the matters referred to in paragraphs (a), (b) and (c) occurred, the Defendant then told the Plaintiff that the Plaintiff did not need her own home as the Victoria Park property would be hers one day ('the Promise').

(a) On 28 April 1992 the Defendant executed a will in which she bequeathed the Victoria Park property to the Plaintiff provided that the Plaintiff's daughter Megan In De Braekt receive $10,000.00 at which time the Defendant said to the Plaintiff that she was leaving the house to her as she had always promised.

(b) (i) In May 1992, the Plaintiff was offered the opportunity to buy into the Flinders Square Lucky Lotto Kiosk with her now husband.

(ii) The Defendant offered to make the Victoria Park property available to be used as security to assist the Plaintiff in borrowing monies to purchase the Lotto Kiosk.

(iii) At this time the Defendant offered to transfer title of the Victoria Park property to the Plaintiff, which offer the Plaintiff declined.

(c) In about 2002 the Defendant affirmed the promise by saying to the Plaintiff that she was leaving the house to the Plaintiff as she had always promised but the Defendant requested that Megan In De Braekt received [sic] $25,000.00 rather than $10,000.00 as provided for in the Defendant's 1992 will.

(d) On many occasions in the period between 1985 and 2002 the Defendant affirmed the promise by saying to the Plaintiff that the Plaintiff could do whatever she liked to the house, that it was the Plaintiff's house, and that the Plaintiff did not have to ask the Defendant for permission to do anything to the house (referring to the Victoria Park property).

(e) On numerous occasions during the early to mid 1990's the Defendant stated to the Plaintiff a desire to sub-divide the Victoria Park property to enable units to be built on the Victoria Park property. The Defendant stated to the Plaintiff that up to 6 units could be built, that the Plaintiff would have one unit, the Defendant would have one unit, and that the Plaintiff and the Defendant would either sell or rent the other units. The Defendant frequently requested the Plaintiff to visit sites in the Victoria Park area, particularly King George Street, Victoria Park where units were being built, in order to determine possibilities for redevelopment of the Victoria Park property.

(a) Listed her Lathlain Park property for sale.

(b) At the request of the Defendant, reduced the asking price for her Lathlain Park property.

(c) At the request of the Defendant changed real estate agents handling the sale of her Lathlain Park property.

(d) Decided not to invest any part of the proceeds of the sale of her Lathlain Park property in the purchase of another block of land.

(e) Provided financial assistance to the Defendant at a level much more generous than she would otherwise have done but for the promise made to her by the Defendant.

(f) Was more generous to the Defendant than she otherwise would have been and would have set aside money for future purchase of land or made future provision for her own security.

(g) Made numerous and regular gifts to the Defendant in the way of purchase of household goods, groceries, apparel, mobile phone, hardware items, gardening and pool products, and provision of spending money, more expensive birthday, Easter, Mother's Day and Christmas gifts, and entertainment, estimated at not less than $50.00 per week.

(h) Paid to the Plaintiff's father and the Defendant until 22 July 1989 and thereafter to the Defendant varying amounts by way of contribution to the costs of the Victoria Park property and in lieu of the monies which the Plaintiff would otherwise have been paying by way of mortgage and by way of contribution for child minding and cleaning services provided by the Defendant to the Plaintiff at the Plaintiff's request.

(i) Paid fortnightly amounts to the Plaintiff's father and the Defendant, and to the Defendant after July 1989, for childcare, household and other services provided to the Plaintiff by the Defendant and by way of contribution to the costs of the Victoria Park property in the amount of [$154,483.33] ...

of which the Plaintiff estimates that the value of child minding and cleaning and other support services provided by the Defendant to the Plaintiff was $86,908.33 and $67,575.00 by way of contribution to the costs of the Victoria Park property.

(j) The Plaintiff would not have continued to pay to the Defendant the sums of money referred to in sub-paragraph (i) which sums included payments by the Plaintiff to the Defendant for child minding and house cleaning services.

(k) Expended in excess of $8,000.00 updating the fixtures and fittings in the upstairs area of the Victoria Park property between December 1984 and mid 1985 ...

(l) Expended in excess of $10,000.00 from mid 1985 until February 2004 on further improvements of the Victoria Park property ...

(m) Paid approximately $6,881.00 for half of the land and water rates for the Victoria Park property from 1985 until February 2004.

(n) Paid approximately $3,128.00 on RAC building insurance for the Victoria Park property for the period from May 1995 to May 2003.

(o) Paid for the monitoring (in excess of $2,376.00) and operation of both the upstairs and downstairs alarm systems at the Victoria Park property from August 1999 to March 2004 (excludes downstairs for last year of period).

(p) The Plaintiff and the Defendant jointly purchased a motor vehicle in March 1996. Thereafter the Plaintiff spent in excess of $13,000.00 on maintenance, repairs and running costs on the vehicle, whereas the Defendant spent less than $3,000.00.

(q) Occupied the upstairs portion of the Victoria Park property which afforded the Plaintiff very little privacy for a period of over 19 years.

(r) Provided services to the Defendant including clerical and administrative assistance, financial, emotional and physical support and security.

(s) Was readily available to assist the Defendant as and when required by her.

1. The Plaintiff acted to her detriment in reliance on the promise as follows:

(a) The Plaintiff's Lathlain Park property was, at the time of the promise, subject to a mortgage in an amount of approximately $15,000.00 in favour of the National Australia Savings Bank.

(b) The Lathlain Park mortgage repayments were approximately $186.00 per month.

(c) Had the Plaintiff not sold her Lathlain Park property she would by now have discharged the mortgage registered upon that property.

(d) Had the Plaintiff not relied on the promise she would by now be the owner of the Lathlain Park property which would have a current value of approximately $300,000.00 - $325,000.00.

(e) The Plaintiff repeats the matters set out in paragraph 7.

1. On or about 6 March 2003 the Defendant resiled from the promise and asserted that the Plaintiff does not have a beneficial interest in the whole of the property subject to the Defendant's life interest.
2. The Plaintiff has acted to her detriment pursuant to her belief, encouraged by the Defendant and/or not discouraged by her that the Victoria Park property would be hers one day. It would be inequitable or unjust for the Defendant, having resiled from or denied the promise, to assert that the Plaintiff does not have a beneficial interest in the whole of the property subject to the Defendant's life interest.
3. Alternatively, in the premises, it would be inequitable or unjust if the Defendant is not estopped by her conduct from denying the Plaintiff's interest in the property.
4. Alternatively, in the premises, it would be inequitable or unjust if the Defendant is not ordered to pay equitable compensation to the Plaintiff.

1. A declaration that the Defendant holds the Victoria Park property on trust for the Plaintiff subject to the Defendant's life interest therein;
2. An order that the Defendant do all acts and things necessary to cause the Victoria Park property to be transferred to the Plaintiff subject to the Defendant's life interest therein; or
3. Alternatively, an order that the Defendant pay equitable compensation to the Plaintiff in an amount to be determined by the Honourable Court;
4. Such other or further orders as the Court may deem appropriate; and
5. Costs."

5 On 5 October 2004 the appellant filed a chamber summons in which she sought orders, as follows:

"1. The Defendant have leave to apply for summary judgment under O 16 r 1 [of the Rules of the Supreme Court].

1. Summary judgment be entered for the Defendant and the Plaintiff's action be stayed or be dismissed against the Defendant under O 16 r 1 [of the Rules of the Supreme Court].
2. Further and in the alternative, the Amended Statement of Claim be struck out in its entirety without liberty to replead, and the action be dismissed against the Defendant under O 20 r 19 [of the Rules of the Supreme Court] and under the inherent jurisdiction on the ground that it is an abuse of the process of the Court.
3. Further and in the alternative, the Plaintiff's claim that she is the beneficiary of an express trust, contained in the Indorsement on the Writ of Summons, filed 17 May 2004, be stayed or be dismissed against the Defendant under O 20 r 19 [of the Rules of the Supreme Court] and the inherent jurisdiction on the grounds that:

(a) it discloses no reasonable cause of action against the Defendant; and

(b) it is an abuse of the process of the Court.

1. The Plaintiff pay the Defendant's cost [sic] of the action, including this application, on an indemnity basis to be taxed if not agreed."

6 The learned Acting Master, in his reasons, said, relevantly, at [4] - [18]:

"4 In determining this matter counsel for the defendant contends that there are a number of issues which need to be resolved and he lists them as follows:

1. The basis of the plaintiff's relief against the defendant is in the form of a declaration or equitable compensation on the basis that she is a beneficiary of an express trust or a constructive trust.
2. If the basis for relief is that the plaintiff is a beneficiary of an express trust has that been abandoned by the filing of the amended statement of claim? It is accepted that an express trust is referred to in the endorsement of the claim but it is submitted it is not referred to in the statement of claim.
3. If the only claim is for relief by way of a constructive trust then the claim is statute barred and consequently will be dismissed under O 16 r 1 or struck out pursuant to O 20 r 19.
4. If the claim is that the plaintiff is the beneficiary of either an express or constructive trust then the claim is defeated by the doctrine of laches.
5. As to the issue of the express trust the defendant makes the following submissions:
   1. The plaintiff has abandoned her claim.
   2. Alternatively, even if the claim has not been abandoned it cannot be maintained by virtue of s 34 of the Property Law Act which has not been complied with, and
   3. The nature of the relief sought can only relate to a constructive trust and not an express trust.
6. As to the first point counsel for the defendant concedes that the writ of summons refers to an express trust as is evident when one examines the document. It is submitted when one goes to the statement of claim it does not plead sufficient facts to identify that [sic] creation of a trust and then the subsequent breach of the trust. Further, when you look at the prayer for relief it is said that although it refers to a trust the statement of claim does not refer to an express trust.
7. In support of his argument counsel for the defendant referred to Renowden v McMullin & Ors [1970] HCA 24; (1970) 123 CLR 584 ...
8. ... It is true the statement of claim makes no reference to an express trust nor does it mention a constructive trust. It simply refers to a trust.
9. Whilst I accept the statement of claim does not specifically refer to an express trust that is not the same thing as omitting all mention of a cause of action or a claim for relief of that nature. Having said that, if such a claim for relief is intended to exist under the current pleading it is not particularly clear.
10. The second point put forward by the defendant is that pursuant to s 34 of the Property Law Act 1969 any express trust should be evidenced in writing and there is no plea to this effect.
11. Thirdly, it is submitted by the defendant that on the facts pleaded it would not be open to a court to find that an express trust exists. I consider this argument has some force. It is further submitted that the facts could only support a constructive trust which the defendant submits is statute barred. Counsel for the defendant accepts that if the trust were an express trust the Limitation Act 1935 would not apply by virtue of s 25(2) of the Supreme Court Act 1935. With that I would agree. He then argues that s 25(2) of the Supreme Court Act 1935 does not affect the operation of limitation periods with respect to constructive trusts and therefore s 47(1) of the Limitation Act 1935 would apply and that any exceptions contained in that section do not apply in this case.
12. Whether or not a limitation period would be relevant would depend on the period from when it would run. The plaintiff argues any time would run from the alleged breach of the promise by the defendant. But the defendant argues that the cause of action does not rely upon any breach but rather relies upon the creation of an equity based upon alleged promises, alleged detriment and alleged reliance and as a consequence the equity arose in 1984 and not in March 2003 as is alleged by the plaintiff. The plaintiff submits the reliance and the detriment are continuing and that is the way the case is pleaded. This, in my view, is an issue which is not clear and not appropriate to be dealt with summarily.
13. The defendant further argues that a constructive trust claim may be commenced without there having been an alleged breach. As a general proposition I think such an argument is open but that is not necessarily an end to the matter. ...
14. It seems to me to be at least open to argument on the facts of this case that if the Court finds there is a constructive trust it can modify the prima facie date upon which the trust takes effect.
15. The defendant further argues that if s 47 of the Limitation Act 1935 does not apply then in a suit in equity it will be applied by analogy. ...
16. I do not consider the state of the law is as clear as counsel for the defendant would argue and in my view, it would not be appropriate to deal with the question of the application of any limitation period to the pleaded facts in a summary way. ...
17. In these circumstances, I do not consider it just to enter judgment at this interlocutory stage nor to strike out the statement of claim. This is a case which requires the facts to be aired to enable the Court to do justice between the parties.
18. As to the question of [the] doctrine of laches I do not think it is appropriate to deal with this at this interlocutory stage. One of the issues to be considered will no doubt be the question of when the cause of action arose. For the reasons I have already expressed I do not consider that question is clear and [it] ought not be determined at this stage. It follows that the question of the doctrine of laches should also await the trial of the action when all the relevant facts can be considered and justly disposed of."

The time within which an application for leave to appeal should have been made

7 As I have mentioned, the learned Acting Master delivered his decision on 18 February 2005. It was an interlocutory decision. By s 60(1)(f) of the Supreme Court Act 1935 (WA), no appeal lies to this Court, without leave, from any interlocutory order or interlocutory judgment made or given by a Judge or Master, except in certain specified cases which are not relevant, for present purposes. Section 60(3) provides that an application for leave to appeal may be made ex parte, unless, relevantly, this Court otherwise directs. By O 63A r 3 of the Rules of the Supreme Court, which was repealed with effect from 2 May 2005, an application for leave to appeal from an interlocutory order or interlocutory judgment of a Judge or Master was required to be commenced within 21 days after the order or judgment. The Supreme Court (Court of Appeal) Rules 2005 (WA) came into operation on 2 May 2005.

8 The appellant did not make application for an extension of time for leave to appeal against the learned Acting Master's decision until 21 September 2006. That is, her application was filed more than 18 months after the time limited by the rules had expired.

Application for leave to appeal: applicable principles

9 In general, an applicant for leave to appeal from an interlocutory decision must demonstrate that the relevant decision was wrong or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would occur if the decision were left unreversed. See Wilson v Metaxas [1989] WAR 285 at 294. It must be emphasised, however, that these are not rigid or exhaustive requirements, and leave may be granted if, in all the circumstances, it is in the interests of justice to grant leave. See The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.

Application for an extension of time to appeal: applicable principles

10 Order 3 r 5 of the Rules of the Supreme Court, read with r 5 of the Supreme Court (Court of Appeal) Rules, confers on this Court a broad discretion to extend time.

11 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, Kennedy J said, at 198:

"In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case."

Where the failure to appeal within time is attributable to the act or default of the applicant's solicitor (and not the applicant), that is a material consideration in the exercise of the Court's discretion. See Esther Investments per Kennedy J at 199 and per Rowland J at 204.

12 In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms "as the justice of the case may require". His Honour said, at 459:

"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes (at 263-264); Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"

Also see Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516.

13 The appellant's proposed grounds of appeal are these:

"Ground 1

The learned Master erred in law in finding that it was not appropriate to summarily determine when a limitation period begins (or began) to run.

Particulars

1. The relevant paragraphs of the learned Master's reasons for decision include paragraphs 12, 16, and 17.
2. Courts can and should determine questions/issues of law summarily, where the alleged facts are clear and sufficient.

1. There were clear and sufficient alleged facts before the learned Master to enable determination of the application of the Limitation Act 1935 to the Plaintiff's alleged claim.

1. It is contrary to the public interest, and most unfair and unjust to both parties, but particularly to the Defendant, for the Court not to summarily determine limitation issues, where the alleged facts are clear and sufficient, as was the case here.

Ground 2

The learned Master erred in law in finding the time at which a cause of action arose and the time at which a limitation period began to run is or may be affected by the Court's remedial ability to modify the date from which a (remedial) constructive trust is to take effect.

Particulars

1. The relevant paragraphs of the learned Master's reason for decision include paragraphs 12, 13, 14 & 17.
2. The Court's remedial discretion to impose a constructive trust does not include any ability to waive or alter the limitation period stipulated in section 47(1)(a) & (3) of the Limitation Act 1935;

1. The date on which a cause of action arose and from which a limitation period begins to run, is distinct and separate to the date from which the Court may determine a trust is to take effect.

1. The learned Master's finding is inconsistent with precedent (directly on point) binding upon this Court, on when a cause of action arises in respect to constructive trust claims.
2. The Plaintiff's allegation of a breach of the alleged constructive trust having occurred in March 2003 was not relevant to the learned Master's determination of the Defendant's Chamber Summons, as the Plaintiff's alleged cause of action against the Defendant had expired long before 2003 (due to sec 47(1) of the Limitation Act 1935), and therefore no alleged breach of trust could have occurred.

Ground 3

The learned Master erred in law by not striking out the Plaintiff's alleged claim of an express trust.

Particulars:

1. Relevant paragraphs of the learned Master's reasons for decision include paragraphs 5-11."

14 The appellant's application to extend time was supported by the appellant's affidavit sworn 22 September 2006. In that affidavit, the appellant deposes, relevantly:

1. I am a 79 year old widowed, aged pensioner.
2. My only asset is my home of 46 years (located at 21 King George Street, Victoria Park), which my late husband and I built together. I have no savings or other sources of income, other than my aged pension in the amount of $515.00 per fortnight.
3. My home and only asset is the subject of the proceedings taken against me (CIV 1661 of 2004) by the Plaintiff - my estranged daughter.
4. In late 2004 my previous solicitors, - Fiocco Lawyers, at my and my Attorney's instruction, lodged a Chambers Summons for summary dismissal of the Respondent's alleged claim against me, on the basis that the cause of action had expired under section 47 of the Limitation Act 1935.
5. On 13 January 2005 the abovementioned Chambers Summons came before Master Chapman for hearing, and the hearing went for about 2 hours.
6. The Master reserved his decision.
7. On 15 February 2005 Master Chapman delivered his decision, which was a dismissal of the application. No costs were awarded.
8. I was very disappointed by this and discussed the matter with my Attorney and then solicitors - Fiocco Lawyers, about 10 days after Master Chapman delivered his decision. I would have discussed it sooner but my solicitors were absent on interstate business.
9. I was advised that Master Chapman had made an error of law in his reasons for decision, which if he had not made, would have resulted in the Respondent's claim against me being dismissed due to its expiration under section 47 of the Limitation Act 1935. I then immediately instructed my previous solicitors to lodge an appeal against Master Chapman's decision. I repeated my instructions to my previous solicitors, to appeal Master Chapman's decision, on at least 2 further occasions during the period between 10 and 20 days after the delivery of Master Chapman's decision.
10. In early March 2005 I spoke with my previous solicitors again, and was very disappointed to learn that they had decided not to appeal Master Chapman's decision because very few appeals on summary dismissal applications were successful, the appeal period had now anyway, expired, and because we could run the time limit argument again at trial.
11. I was very unhappy about an appeal not being lodged, but felt powerless as I did not want to have a falling out with my solicitors.
12. I had instructed and explained to my solicitors to take an appeal because it was in my best interest to have the time limit issue dealt with as soon as possible, rather than have to go through the whole litigation process (which I simply cannot afford and which is having a very detrimental effect on my health and quality of life) and then have the Court decide that the Respondent's claim had expired more than 14 years ago. I am 79 years old, and I am simply not able to spend years of my life under the constant stress and trauma of litigation, especially when I may not have very many years left. Therefore even if there was only a small chance of success, it was worth it in my case.
13. If I could read and write English well (it is my second language), and had a decent education, I would have lodged the appeal myself, but I had no hope of being able to do that.
14. In late August 2006, $30,000.00 I had obtained through a personal loan had long run out, and I owed Fiocco Lawyers at least another $30,000.00 in legal fees. Because the Respondent has an absolute caveat over my only asset (my home) I cannot raise any more funds for my defence, and I have no savings. The only way I can raise funds is to obtain a reverse mortgage over my home, but I cannot do this with the absolute caveat over my property. I had also repeatedly instructed Fiocco Lawyers, from when I first engaged them in August 2004, to take urgent action to have the caveat removed from my property, however this was not done. I was powerless.
15. In late August 2006, I engaged my Attorney (Ms Megan in de Braekt) to be my solicitor in these proceedings. Soon after this, I spoke with my newly appointed solicitor about an appeal of Master Chapman's decision. I was advised that it is possible to lodge an appeal after the appeal period had expired. I was also advised that my ground of appeal had a strong prospect of success.
16. In mid-September 2006 I accordingly instructed my newly appointed solicitor to lodge an appeal against Master Chapman's decision, which she has duly and promptly done.

15 Although the Limitation Act 1935 (WA) was repealed by s 4(1) of the Limitation Legislation Amendment and Repeal Act 2005 (WA) ("the Amendment and Repeal Act"), s 4(2) of the Amendment and Repeal Act stipulates that the Limitation Act 1935 continues to apply, despite its repeal and the enactment of the Limitation Act 2005 (WA), to causes of action that accrued before the "commencement day". In s 3 of the Amendment and Repeal Act, "commencement day" is defined to mean the day on which the Limitation Act 2005 comes into operation. The day in question was 15 November 2005.

16 Section 47(1) of the Limitation Act 1935 (which was based upon s 8 of the English Trustee Act 1888) sets out limitation periods applicable to, relevantly, certain proceedings against trustees. It provides:

"(1) In any action or other proceeding against a trustee or any person claiming through him, or in reference to any trust, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was a party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee or previously received by the trustee and converted to his own use, the following provisions shall apply: -

(a) All rights and privileges conferred by this Act or any statute of limitations shall be enjoyed in the like manner and to the like extent as would have been the case if the trustee or person claiming through him had not been a trustee or person claiming through him.

(b) If the action or other proceeding is brought to recover money or other property and is one to which no existing statute of limitations applies, the trustee or person claiming through him shall be entitled to the benefit and be at liberty to plead the lapse of time as a bar to such action or other proceeding in the like manner and to the like extent as if the claim had been against him (otherwise than as a trustee or person claiming through a trustee) in an action of debt for money had and received; but so nevertheless that the statute or bar by lapse of time shall not begin to run against any beneficiary until the interest of such beneficiary is an interest in possession."

By s 47(3) of the Act, for the purposes of s 47, the expression "trustee" includes, amongst others, a trustee whose trust arises by construction or implication of law as well as an express trustee.

17 The provision in s 47(1)(b) of the Limitation Act 1935 to the effect that, in an action or other proceeding brought to recover money or other property, time does not begin to run against a beneficiary until the beneficiary's interest in the trust property is vested in possession, reflects s 7 of the Act. By s 7, relevantly, a right to make an entry or distress, or to bring an action to recover any land or rent, "shall be deemed to have first accrued in respect of an estate or interest in reversion or remainder, or other future estate or interest", when the interest in question becomes an estate or interest in possession. Accordingly, although, in general, a beneficiary's cause of action for breach of trust accrues on the date of the breach, and not the date on which the beneficiary suffers loss (In re Somerset [1894] 1 Ch 231 at 268), time does not begin to run against a beneficiary with a future interest until the interest becomes vested in possession. See In re Blow; Governors of St Bartholomew's Hospital v Cambden [1914] 1 Ch 233, where Swinfen Eady LJ said, at 246, in the context of proceedings concerning s 8 of the English Trustee Act 1888:

"Even in the case of a beneficiary, time runs from the date when his interest becomes an interest in possession, as distinguished from an interest in remainder, and not from the time when some sum may become actually payable to him. Thus in How v Earl Winterton ([1896] 2 Ch 626) the statute ran from the expiration of the term, as from which date the plaintiff's annuity accrued and began to run, and not from the date when the first instalment of the annuity would become payable, which was six months after the expiration of the term."

18 No limitation period applies, by virtue of s 47(1), where the claim is founded on any fraud or fraudulent breach of trust or is to recover property retained or converted by the trustee. Fraud, within s 47(1), means equitable fraud. See Re Sale Hotel & Botanical Gardens Co Ltd (1897) 77 LT 681 at 682; Hicks v Trustees Executors & Agency Co Ltd (1901) 27 VLR 389 at 394 - 395.

19 The distinction between express and constructive trustees, in the context of the application of statutory limitation periods, and the extent to which the English Trustee Act 1888 (and Australian legislation modelled on that Act) altered the law, was considered by R P Austin in his essay "Constructive Trusts" appearing in Finn (ed), Essays in Equity, (1985) at 196. The learned author said, at 204:

"Early statutes of limitations were restricted to actions at law, but equity developed a doctrine of analogy, according to which it would apply the common law limitation period to an analogous proceeding in equity in order to prevent plaintiffs at law from avoiding the statute by disguising their claims as equitable (Smith v Clay [1767] EngR 55; (1767) 3 Bro CC 646n; 21 ER 895. See H A J Ford and W A Lee, Principles of the Law of Trusts (1983), p 790ff). The application of the statute to equitable claims was qualified by several rules, including the rule that time would not run against a defendant unless his interest was vested in possession. In applying this doctrine of analogy to trusts, Chancery distinguished between express and constructive trustees. In proceedings brought by a beneficiary against an express trustee, the trustee could not rely on the application of the statute by analogy, because his possession of the trust property was possession on behalf of rather than against his beneficiaries (Life Association of Scotland v Siddal (1861) 3 De GF and J 58; [1861] EngR 300; 45 ER 800; Soar v Ashwell [1893] 2 QB 390; Taylor v Davies [1920] AC 636 at 650 - 651 (PC)). In contrast, a constructive trustee was treated as similar to a tortfeasor, and time was allowed to run in his favour (Soar v Ashwell [1893] 2 QB 390, and cases there cited). The Trustee Act of 1888 (Eng) altered the law by extending the statutory protection to an express trustee other than a trustee who had committed or was privy to fraud or had retained or converted trust property. The Legislature's attempt in the same Act to place constructive trustees on the same footing as express trustees was unsuccessful (Taylor v Davies [1920] AC 636; Clarkson v Davies [1923] AC 100; Queensland Mines Ltd v Hudson (1976) ACLR 176), though a degree of prevarication was introduced over the use of the labels 'express' and 'constructive' (See esp. Soar v Ashwell [1893] 2 QB 390 at 393 per Lord Esher MR, at 396ff per Bowen LJ, at 405 per Kay LJ; Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 at 100 per Dixon J).

It was obviously necessary for Chancery, both before and after the 1888 Act, to develop a distinction between those express trusts which were not protected by the limitation period, and those constructive trusts which were. Unfortunately, no coherent test emerged. ..."

20 Section 25(2) of the Supreme Court Act 1935 (WA) (repealed) provides:

"Except as provided by the Trustees Act 1900, no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations."

21 Section 17 of the Amendment and Repeal Act repealed s 25(2) of the Supreme Court Act. Section 17 did not, however, contain a savings provision with respect to s 25(2). Compare s 18(1) of the Amendment and Repeal Act which repealed s 29 of the Supreme Court Act and contained a savings provision to the effect that s 29, as it was immediately before the commencement day of the Amendment and Repeal Act, continues to apply to causes of action that accrued before the commencement day as if s 18(1) had not been enacted.

22 The legislative history of s 47 of the Limitation Act 1935 and s 25(2) of the Supreme Court Act was analysed in the Law Reform Commission of Western Australia's report, Limitation and Notice of Actions, Project No 36, Pt II, January 1997. In pars 13.28 and 13.29, it is said:

"13.28 It has been seen that the pre-1888 law made several distinctions between express and other kinds of trustees. It is not altogether clear to what extent the English Trustee Act 1888 applied to express trustees. The provisions of the English Judicature Acts of 1873-75 expressing the general rule that equity prevails over the common law had provided that no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, should be held to be barred by any statute of limitations ((UK) Supreme Court of Judicature Act 1873 s 25(2)). However the 1888 Act defined 'trustee' to include an executor or administrator and a trustee whose trust arose by construction and implication of law as well as an express trustee ((UK) Trustee Act 1888 s 1(3)). The Wright Committee Report in 1936 suggested that the 1888 Act probably intended to do away with the distinction between express and other trustees, but that the problem remained that the exceptions apparently did not apply to a constructive trustee, such as an executor or administrator, so allowing such trustees to plead the statute even though they had retained the property or converted it to their own use (Wright Committee Report (1936) para 11). In the years after 1888, the courts sought to modify the effect of this rule by giving a wide meaning to 'express trust', so as to bring most cases of fiduciary relationship within the exception (See eg Soar v Ashwell [1893] 2 QB 390, Bowen LJ at 395 and 398, and authorities there cited; Re Eyre-Williams [1923] 2 Ch 533). It appears that the position was the same in Western Australia: the Judicature Act provision was copied in the Supreme Court Act 1880 (s 8(2)), and the Trustee Act provision in the Trustees Act 1900 (s 13. The definition of 'trustee' was incorporated in s 3).

13.29 The more recent history of these provisions in Western Australia is somewhat unfortunate. In 1935 the present Supreme Court Act replaced the 1880 Act. The Judicature Act provision was reproduced, prefaced by the words 'Except as provided by the Trustee [sic] Act, 1900 (s 25(2))'. It was proclaimed to commence on 1 May 1936. However, the Limitation Act 1935, which was presumably being drafted at the same time, reproduced the trusts provisions of section 8 of the English Trustee Act 1888 in section 47. The Limitation Act was proclaimed to commence on 9 April 1936 and did not repeal the provision in the Trustees Act 1900. Thus, between 1 May 1936 and 1 January 1963, when the Trustees Act 1900 was replaced by the Trustees Act 1962, there were two sets of limitation provisions for trusts, in different Acts. Until the most recent reprint, the Judicature Act provision in the Supreme Court Act 1935 read 'Except as provided by the Trustees Act 1962', but unfortunately there are no limitation provisions in that Act (Following correspondence between the Commission and Parliamentary Counsel, the reprint of 23 November 1995 reinstated the reference to the Trustees Act 1900)."

23 Accordingly, before the introduction of statutory limitation periods which applied directly to some causes of action against trustees, the position was that equity distinguished between express trustees, who could plead only laches and acquiescence, and constructive trustees, who could plead the limitation period prescribed for analogous common law claims.

24 Section 8 of the English Trustee Act 1888, and other legislative provisions based on s 8 (including s 47 of the Limitation Act 1935), have been construed to apply to some constructive trustees but not others. The point of distinction was established in Taylor v Davies [1920] AC 636 and Clarkson v Davies [1923] AC 100. It is explained in Jacobs' Law of Trusts in Australia, 6th ed at [2227]:

" ... where a trustee is a constructive trustee, the limit is six years notwithstanding that it is a case of fraud, or that the claim is one to recover trust property which is still in his hands, or that he has received trust property and converted it to his own use, unless he became a constructive trustee through some transaction antecedent to the transaction impeached and not through the latter transaction alone."

Also see Piwinski v Corporate Trustees of the Diocese of Armidale [1977] 1 NSWLR 266 at 271 - 272; Levi v Stirling Brass Founders Pty Ltd (1997) 36 ATR 290 at 297. In Clay v Clay [1999] WASCA 8; (1999) 20 WAR 427, the Full Court of the Supreme Court of Western Australia referred to s 47(1) of the Limitation Act 1935 and reaffirmed, at 459 [88], that where the trustee is a constructive trustee the rule in Taylor v Davies applies. The Full Court then added, at 459 - 460 [88]:

"By this rule the time for bringing an action is limited, notwithstanding that the claim is one to recover trust property that is still in the trustee's hands, unless the trustee became a constructive trustee through some transaction antecedent to the transaction impeached, and not the latter transaction alone."

Later, at 460 - 461 [89] - [93], the Full Court considered the interaction between s 47(1) of the Limitation Act 1935 and s 25(2) of the Supreme Court Act:

"Insofar as the appellant's claim can now be seen to be founded in the breach of the express trust constituted by s10 of the Guardianship of Children Act, the rule in Taylor v Davies has no operation, so that the claim is within the exception mentioned to s 47(1). Hence it is not statute barred. Even if it were precluded by s 47(1), the claim might nevertheless be pursued and relief granted by virtue of s 25(2) of the Supreme Court Act 1935. The Limitation Act, including s 47(1), was enacted by Act No 35 of 1935 which received Assent on 7 January 1936 and came into force on its proclamation on 14 April 1936. The Supreme Court Act was enacted by Act No 36 of 1935, received Assent on 3 April 1936 and came into operation on 1 May 1936. Notwithstanding what had just been enacted by s 47(1) of the Limitation Act, s 25(2) of the Supreme Court Act provided:

'Except as provided by the Trustees Act 1900, no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations.'

The exception is not relevant for these purposes (although an interesting issue was raised whether today the reference to the Trustees Act should be to the 1900 or the 1962 Act). The Supreme Court Act is clearly the later enactment and the subject matter of s 47(1) and s 25(2) is clearly in part the same. The consequence is that the operation of s 47(1) is necessarily modified or suspended where a case is also within s 25(2); and see Western Australian Trustee Executor and Agency Co Ltd v Tate (1949) 51 WALR 46 at 55 - 6. The present appears to be such a case. Section 25(2) has been recognised as generally reflecting and preserving the general rule of equity which was, statutory provisions aside, that as between beneficiaries and express trustees lapse of time was not a bar: see Beckford v Wade [1805] EngR 116; (1805) 17 Ves 87 at 97[1805] EngR 116; , 34 ER 34 at 38. Before s 47(1) and the statutes elsewhere on which it was based, express trusts were not within the Statutes of Limitation.

In this context it has been held that an express trust means a trust expressed by writing or by word of mouth but does not include a trust arising from act of the parties or operation of law: see Sands v Thompson, Jacobs', par 2225. It appears that it extends also to a trustee whom equity has come to regard as standing in the same position as an express trustee: see Soar v Ashwell [1893] 2 QB 390 cf 393 - 394 and 397 - 398; Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 at 99 - 101 per Dixon J.

The trust arising from s 10 of the Guardianship of Children Act is accepted by the parties to be a trust expressed by writing for these purposes and therefore is within the reach of s 25(2). As this is a claim by a cestui que trust against the trustee 'in respect of any breach of' an express trust, it appears to be within the operation of s 25(2) so that it is not 'barred by any statute of limitations'.

While s 47(1) of the Limitation Act, which by s 47(3) applies to express as well as other trusts, was directed to modifying this position, the legislative history of s 47(1) and s 25(2) has denied to s 47(1) its full potential effect."

25 On appeal to the High Court, the decision of the Full Court in Clay was reversed: Clay v Clay [2001] HCA 9; (2001) 202 CLR 410. The High Court held that the Full Court had erred in its construction and application of s 10 of the Guardianship of Children Act 1972 (WA). The joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ referred to two points arising from the interaction between s 47(1) of the Limitation Act 1935 and s 25(2) of the Supreme Court Act. Their Honours said, at 432 [44]:

"Section 25(2) of the Supreme Court Act commenced on 1 May 1936 whilst s 47 of the Limitation Act had commenced on 14 April 1936. This reversed the order of the United Kingdom legislation whence these provisions derived. That order would indicate that s 25(2) restated the general law and s 47 then qualified it. The sequence of events in Western Australia, on its face, suggests a mishap whereby the revised general law was then displaced by a restatement of the general law in its pristine form. It is unnecessary here to resolve that apparent conundrum. Both laws operate by reference to an 'express trust' and Mrs Clay was not trustee of any such trust. Nor is it necessary to consider another point adverted to by the Full Court. This concerns the continuing force, if any, to be given to the opening words of s 25(2) (with their reference to the 1900 Act) after the repeal of the 1900 Act by the 1962 Act."

26 A "common intention constructive trust" arises simultaneously with the conduct which gives rise to its imposition. See Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120 at 124 - 126 [11] - [16]. Also see Secretary, Department of Social Security v Agnew [2000] FCA 59; (2000) 96 FCR 357 at 365 (as explained by the Full Court of the Federal Court in Parsons at 126 [14] - [15]); Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 112 [3] - [6]; Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 614. In Parsons, Black CJ, Kiefel and Finkelstein JJ expressly rejected, at 125 [13], the notion that a "common intention constructive trust" first comes into existence when it is declared by a court of competent jurisdiction. I note, however, that Parsons and the other authorities which I have just mentioned were not concerned with the application of statutory limitation periods.

27 It appears that where a constructive trust arises only by reason of (and not before) the occurrence of the transaction impeached, any statutory limitation period which applies, either directly or by analogy, in respect of the enforcement of the trust, commences to run from the date of the transaction in question. See Piwinski per Waddell J at 271 - 272. In Bank of New Zealand v Spedley Securities Ltd (in liq) (1992) 27 NSWLR 91, Kirby P noted, at 100, that Waddell J's view in Piwinski as to the date on which time should be taken to run, in the case of a constructive trust which arises only by reason of the transaction impeached, was not necessary to his Honour's conclusion in that case. Kirby P then said, however, that Waddell J's view derived support from other authorities (for example, Queensland Mines Ltd v Hudson (1976) CLC 40-266 at 28,711), and it would appear to be consistent with the decisions of the High Court in Daly v Sydney Stock Exchange Ltd [1986] HCA 25; (1986) 160 CLR 371 at 388 and Muschinski at 614.

28 It is significant, however, in the context of the present case, that the constructive trusts alleged in Piwinski and Bank of New Zealand (and also in the authorities referred to by Kirby P in Bank of New Zealand) did not concern a future interest in property. In other words, the alleged constructive trusts in each of those authorities related to a claim for an interest in possession in the property the subject of the trust.

29 Statutory limitation periods are not directly applicable to proceedings for declaratory relief, but it appears that ordinarily the Court will apply a limitation period by analogy when exercising its discretion in relation to the grant of relief. See Hogg v Scott [1947] KB 759 at 767; P W Young QC, Declaratory Orders, 2nd ed, at [2405].

30 In Wardley Australia Limited v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, Mason CJ, Dawson, Gaudron and McHugh JJ said emphatically, at 533, in the context of proceedings under s 82 of the Trade Practices Act 1975 (Cth):

"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

That statement was referred to by Burchett AJ in Young v Waterways Authority of New South Wales [2002] NSWSC 612, in the context of a successful appeal against the decision of a Master who had struck out parts of a statement of claim on the ground that those parts pleaded a barred cause of action. After referring to Graf v Hope Building Corporation (1930) 171 NE 884 at 887, Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 and The Crown v McNeil [1922] HCA 33; (1922) 31 CLR 76 at 100, his Honour said, at [27]:

"These principles have only to be stated for it to be clear that their implementation involves the very kind of concern with the whole of the evidence which underlies the admonition delivered by the High Court in Wardley Australia Limited v Western Australia. An application of the statute by analogy could very rarely indeed lead to a summary dismissal of an action."

I agree, with respect, with those observations. An application for summary judgment will rarely be a satisfactory process for determining whether equity should apply a statutory limitation period by analogy.

31 The respondent, in her writ of summons, claimed that she was the beneficiary of "an express trust and/or the beneficiary of a constructive trust" in respect of the Victoria Park property. The amended statement of claim does not, however, plead in terms an "express trust" or a "constructive trust". Rather, it pleads various facts and, in the prayer for relief, there is a claim for a declaration that the appellant holds the Victoria Park property "on trust" for the respondent "subject to the [appellant's] life interest therein". Ancillary orders and other relief are also claimed. It is apparent, on a fair reading of the amended statement of claim as a whole, that the respondent alleges a constructive trust and not an express trust. This issue was raised by the learned Acting Master with counsel for the respondent (at t/s 38):

"THE ACTING MASTER: ... What of the proposition put forward by counsel for the defendant that you have abandoned any claim in relation to express trust?

HANLY, MR: Yes. I have to confess that there may be some merit in that. I don't make that concession but I can see that there may be some substance in that ..."

By O 20 r 2(3) of the Rules of the Supreme Court 1971, subject to O 20 r 2(2), a plaintiff may, in his or her statement of claim, alter, modify or extend any claim made in the indorsement of the writ without amending the indorsement. The delivery of a statement of claim within time operates as the amendment of the writ without leave. See Seaman, Civil Procedure Western Australia, at [21.5.2]. Order 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned. In Jeffrey v Witherow [2006] WASCA 4; (2006) 31 WAR 236, this Court distinguished Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584 and held that O 20 r 2(2) and (3) are consistent with the analysis and conclusions of Barwick CJ and McTiernan J (dissenting) in Renowden (at 594 and following).

32 Although it appears to me that the amended statement of claim pleads a constructive trust and does not plead an express trust, I will deal with proposed grounds 1 and 2 on the basis that the case which the respondent would seek to advance at trial, in a properly drawn pleading, is based upon an alleged constructive trust, alternatively an alleged express trust.

33 I am satisfied that the respondent has at least a reasonably arguable case that her claims are not barred by any statutory limitation period applying either directly or by analogy. In particular:

(a) It is reasonably arguable that, by virtue of s 25(2) of the Supreme Court Act, any claim based on an express trust is not subject to any statutory limitation period, either directly or by analogy, and that (notwithstanding the absence of an applicable savings provision in the Amendment and Repeal Act) s 37 of the Interpretation Act 1984 (WA) saves the operation of s 25(2) in relation to accrued causes of action in proceedings commenced before the repeal of s 25(2).

(b) In any event, even if, by virtue of s 47(1) of the Limitation Act 1935, a limitation period is capable of application to any claim based on an express trust, it is reasonably arguable that time has not commenced to run against the respondent, in that:

(i) the respondent's alleged interest in the Victoria Park property is a future interest and that interest will not become an interest in possession until the appellant's death; and

(ii) the limitation period does not begin to run against a beneficiary with a future interest in trust property until the interest becomes vested in possession.

(c) It is reasonably arguable that even if, by virtue of s 47(1) of the Limitation Act 1935, a limitation period is capable of applying to any claim based on a constructive trust, for the reasons I have enunciated, at [33(b)(i) and (ii)] above, time has not commenced to run against the respondent.

(d) It is reasonably arguable that even if a statutory limitation period is capable of applying by analogy to any claim based on a constructive trust:

(i) for the reasons I have enunciated, at [33(b)(i) and (ii)] above, time has not commenced to run against the respondent;

(ii) further or alternatively, equity will not apply a limitation period by analogy where there are circumstances which make the application of the statute unconscionable (Hewitt v Henderson & Anor [2006] WASCA 233 at [16] - [25]) and, in the present case, it is reasonably arguable that it would be unconscionable to apply the limitation period by analogy.

34 It is unnecessary, in this application, to determine the accuracy of the learned Acting Master's reasoning in relation to the issues raised by proposed grounds 1 and 2. His decision to refuse summary judgment was correct. For the reasons I have given, the appellant does not have a reasonable prospect of persuading this Court that the learned Acting Master's decision should be reversed, and summary judgment entered against the respondent. I would therefore refuse to grant the appellant an extension of time to apply for leave to appeal on the basis of proposed grounds 1 and 2.

35 Even if the learned Acting Master erred in determining whether the amended statement of claim pleaded an express trust and, if so, whether such a plea was reasonably arguable, I would not, in the circumstances, grant the appellant an extension of time to apply for leave to appeal on the basis of proposed ground 3. I am satisfied that substantial injustice would not occur if the learned Acting Master's decision on the point were left unreversed. First, interlocutory appeals in relation to pleading disputes are, ordinarily, to be discouraged. Secondly, as I have mentioned, the amended statement of claim (unlike the indorsement on the writ) pleads various facts and then, in the prayer for relief, claims declaratory (and other) relief to the effect that the appellant holds the Victoria Park property on trust for the respondent, subject to the appellant's life interest in the property. The amended statement of claim does not purport to classify the trust as constructive or express. It was amended within the range of the indorsement on the writ, and does not appear to me to allege an express trust. Thirdly, although the appellant has given some explanation for the delay between early March 2005 and late August 2006, the delay in question is inordinate and it would be unjust to require the respondent to re-argue a pleading point after such a significant delay, especially where, as I have found, the respondent has at least a reasonably arguable case in relation to the contentions in proposed grounds 1 and 2. Fourthly, the trial should not be prolonged unduly if a claim based on an express trust were to be litigated in addition to a claim based on a constructive trust. Fifthly, the interests of both parties would better be served by a prompt trial rather than further argument about the respondent's pleading.

36 I am not persuaded that strict compliance with the rules will work an injustice upon the appellant. Her application for an extension of time to apply for leave to appeal will therefore be dismissed.