LAINE -v- LAINE [2016] WASC 401 (13 December 2016)

3 By way of contrast an application under O 16 confines the plaintiff to the causes of action that are pleaded. Whilst the defendant bears the legal onus to show that there is no serious cause of action to be tried if the plaintiff leads evidence to show there is a cause of action he assumes an evidentiary onus.

4 The rules applying to an application to strike out a pleading are well understood and need not be repeated here. It is the practice of this court to discourage endless disputes over pleadings. So long as it is possible to identify relevant material facts then the pleading should be allowed to stand and the action should move forward so that the real issue between the parties can be determined. Although that is the present approach adopted to commercial litigation it does not alter the fact that the rules of pleading still apply and pleadings which offend those rules can be struck out. It is really all a question of degree. To what extent does the pleading obscure the true issues between the parties and to what extent does it identify those issues. While easy to state that principle can be difficult to apply in practice. This reamended statement of claim well illustrates the point.

5 Paragraph 1 of the reamended statement of claim (which I will refer to as 'the SOC') identifies the plaintiff as the eldest son of Voitto Tapio Laine (the deceased). The first defendant is the executor of the deceased's estate. Although they are not identified as such in the SOC the second, third and fourth defendants are children of the deceased and beneficiaries under his will.

6 The deceased was by trade a fisherman. As at the date of his death he was the registered holder of Managed Fisheries Licence 1436 (MFL 1436). He first became registered as the holder of that licence in the 1960s. The plaintiff worked with his father in the fishing industry. As at the date of death of the deceased MFL 1436 was attached to a fishing vessel known as the Kilaine II. Importantly attached to MFL 1436 are 67 craypots which allow for the fishing of the western rock lobster.

7 On any view of the pleading pars 2 17 ought be struck out apart from par 11, these paragraphs plead evidence. It is not, as counsel for the plaintiff submitted, a matter of pleading background facts which are material. What is pleaded is evidence pure and simple and it ought not be in the SOC. Paragraph 11 deals with the will of the deceased. It is a material fact but it ought be pleaded after the material facts.

8 Paragraph 18 of the SOC is in the following terms (marking up omitted):

In or about early 2008 the deceased told Tapio that he wanted:

(a) to give the Kilaine II, MFL 1436 and the 67 pots attached to it to Tapio;

(b) that Tapio be entitled to all the proceeds from fishing the Kilaine II; and

(c) that Tapio attend to paying all the costs associated with the Kilaine II, MFL 1436 and the 67 pots attached to it.

Tapio agreed with the deceased's proposal ('the Agreement'). Furthermore, the deceased declared at that time that the Kilaine II, MFL 1436 and the 67 pots attached to it were Tapio's ('the Declaration').

9 This is a classic rolledup plea. That is to say, in the one paragraph it has two distinct and separate concepts - 'the Agreement' and 'the Declaration'. As I understand the pleading the two concepts are different and they should be pleaded in two different paragraphs.

10 It was the defendants' position the Agreement could not be a contract because no consideration was pleaded. Further, it was said it was by no means clear what cause of action was said to arise from the Declaration. Subsequent paragraphs in the SOC suggested creation of an express trust. The defendants maintained if that was what was intended the pleading was inadequate.

11 What a properly pleaded statement of claim requires is a clear statement of the material facts. What is so often pleaded is a cause of action. This SOC is deficient because it pleads causes of action. But that fault is found later in the pleading. In my view pleading of the Agreement - or perhaps more correctly pleading of the material facts which are subsequently defined as the Agreement - is perfectly proper. What is not clear from par 18 is whether or not there were any additional material facts which gave rise to the declaration. If the intent is that the facts defined as the Agreement could, properly viewed, give rise to an express trust then that is a matter which might be highlighted in the prayer for relief. However, the use of the word 'Furthermore' suggests not an alternative - an Agreement on the one hand and an express trust on the other - but something more independent of the material facts which led to the Agreement. In my view while par 18 ought be repleaded, not least to separate out the Agreement and the Declaration, the material facts said to give rise to the Agreement can be pleaded.

12 Paragraph 19 pleads that between the date of the Agreement and the deceased's death, the deceased and Tapio 'gave effect to the Agreement and Declaration'. The problem of the rolledup plea persists. Furthermore, there are particulars given which presumably are particulars of how the parties gave effect to the Agreement and the Declaration. These are not particulars at all but material facts. However, the subparagraphs are likely to be uncontroversial because while the defendants would agree matters referred to in the particulars occurred they argue that they did not occur because of either the Agreement or the Declaration. Paragraph 19 although deficient in form can in my view stand as presently pleaded. However, as the SOC is to be struck out it would be prudent for the form to be amended.

13 Paragraph 20 pleads a cause of action. It effectively says if Kilaine II MFL 1436 and the 67 pots are not transferred to the plaintiff it will be unconscionable. Paragraph 21 really is a prayer for relief inserted in the body of the pleading. While both paragraphs are unnecessary and irrelevant they at least alert the defendants to what is being put against them and they should remain.

14 Paragraphs 22 29 plead estoppel. Once again what is pleaded is a cause of action not material facts. There are certain fact situations which can give rise to an estoppel - a representation by a particular party, reliance upon that representation by the party to whom the representation was made, a resiling from the representation and detriment suffered by the party to whom the representation was made. The defendants complain the species of estoppel actually pleaded is not disclosed by the SOC. That may be true but it is of no moment. All that needs to be pleaded are the material facts. Whether those material facts if proved by the evidence give rise to an estoppel is a question of law to be determined at trial. What the plaintiff has done here is plead in par 22 what is defined as 'the Expectation'. That appears to be a plea of reliance. The confusion arises as much as anything by the use of the unhelpful phrase 'the Expectation'.

15 It was the primary position of all defendants that the pleading simply did not disclose a cause of action. If a contract was pleaded then no consideration is alleged and that cause of action must fail. If there is said to have been a gift from the deceased to the plaintiff then that gift was not perfected and no cause of action can now lie. Furthermore, it was said there was no evidence to support the creation of a trust nor was it open on the facts of this case for the plaintiff to claim there was an estoppel. In my view, while there are real difficulties standing in the way of a claim based in contract or a claim of a gift, it is arguable the plaintiff may have a claim for an express trust or a claim in estoppel. If the pleading is amended to refer to only the material facts then the plaintiff's claim should go forward and I would not enter summary judgment for the defendants.

16 There are two further matters which require comment. The first has to do with duty payable on the transfer of the Kilaine II, MFL 1436 and the 67 pots. Paragraph 22 seems to suggest there should be some form of order which adjusts the will of the deceased so that the vessel, the licence and the pots are transferred pursuant to the deceased's will. Clearly no such relief is open to the court. The plaintiff must accept if he were to be successful in his claim he would be liable for duty on any transfer. That does not mean the duty has to be paid now or that the pleading would fail because the duty has not been paid or because no undertaking to pay the duty has been given. Doubtless if at trial the court determined the plaintiff was entitled to the assets any order would be conditional upon the payment of duty.

17 Second, the defendants allege this action is effectively a collateral attack on the will of the deceased. As probate of that will has been granted and as the Kilaine II, MFL 1436 and the 67 pots have been included in the assets by pursuing this action the plaintiff is somehow undermining the terms of the will.

18 In my view there is no substance in that complaint. It may well be if the plaintiff's action is successful and the Kilaine II, MFL 1436 and the 67 pots are not, properly considered, part of the estate of the deceased. That will have consequences for the beneficiaries. It may even mean there is a partial failure in the distribution envisaged by the will. But that is a separate question to the question raised by the plaintiff in this case. There is no collateral attack on the grant of probate as alleged and that does not provide grounds for entry of summary judgment.

19 There remains a further plea found in the SOC in relation to the purchase of an additional 20 pots. The plaintiff pleads that in or around March 2009 the deceased paid $275,020 for an additional 20 pots which were attached to MFL 1436. Effectively what the plaintiff alleges is the deceased loaned the plaintiff the money to purchase these pots and as at the date of death of the deceased the plaintiff owed the deceased almost all of the purchase sum and by the deceased's will the debt was forgiven. At issue here is the terms of any agreement between the plaintiff and the deceased. While the defendants may maintain there was no such agreement and the 20 pots fall into the estate of the deceased the plaintiff's position is arguable and must be determined on a proper examination of the evidence. That aspect of the plaintiff's claim can stand in its present form (pars 31 35).

20 The better course in this case is to strike out the whole of the SOC and allow the plaintiff to replead. I would dismiss the defendants' application for summary judgment. I will hear the parties as to the form of orders and as to costs.