Plaintiffs v Defendants

PRACTICE AND PROCEDURE - Pleadings - Application for further and better particulars of defence - Where particulars sought in relation to valuation factual assertions - Where particulars amount to request for evidence - Application dismissed - Supreme Court (General Civil Procedure) Rules 2015, r 13.11.

Mr J Evans, one of Her Majesty's counsel, and Mr A Purton of counsel

1 This ruling concerns two applications brought by the plaintiffs. The first is an application for leave to file an amended statement of claim[1]. The second is an application for an order requiring the third defendant to file and serve better particulars of its defence dated 28 August 2020.

2 For the reasons that follow, I have decided the plaintiffs should be granted leave to file a further amended statement of claim in the form provided to the defendants on 3 September 2021 but the plaintiffs' application for an order that the third defendant provide further and better particulars of defence should be dismissed.

3 It is necessary to consider the plaintiffs' applications in the context of the dispute between the parties and the procedural history of this matter, including the evolution of the pleadings.

4 Eric Parrington Fay (EP) and his wife Zillah Fay (Zillah) had eleven children.[2] The plaintiffs in this proceeding are their five youngest children. The first and second defendants, William Fay (William) and Eric Fay (Eric) respectively, are their two eldest children.

5 EP died on 21 December 1983, leaving a last will dated 16 September 1977 (Will). Under the Will, Zillah, William and Eric were appointed executors and trustees of EP's estate. The Court granted Probate of the Will to Zillah, William and Eric on 18 May 1984. Zillah died on 29 September 2017. William and Eric are the surviving executors of the Will and trustees of EP's estate.

6 The Will bequeathed, after payment of funeral and testamentary expenses, a life interest in the estate to Zillah and, after Zillah's death, the residuary estate divided equally to the plaintiffs.

7 The estate comprised real property of a house and farm located in Carranballac, Victoria[3], as well as personal property in the form of shares, loans, an interest in a partnership, a car and a modest life assurance policy. The farm was and is used for commercial cropping.

8 The partnership in which EP held an interest was called EP & Z Fay & Sons. This entity was the vehicle for the family farming business. The partners of EP & Z Fay & Sons, as at 20 November 1984, were Zillah, William, Eric and two other siblings who are not parties to this proceeding.

9 At the time of his death, EP held shares in Rippon Lea Farming Company Pty Ltd (RLF), the third defendant. RLF was another entity through which members of the Fay family carried on their farming business. RLF's shareholders at the time of EP's death were EP, Zillah, William, Eric, two other siblings who are not parties to this proceeding and the third and fifth plaintiffs.

10 On 30 March 2020, the plaintiffs filed a statement of claim in which they pleaded that, upon Zillah's death on 29 September 2017, William and Eric became obliged to transfer the residuary estate to the plaintiffs but refused to do so and also failed to provide the plaintiffs with accounts of the estate.

11 The plaintiffs seek relief including declarations that William and Eric hold the real property on trust for the plaintiffs, orders to effect the transfer of the real property to the plaintiffs and for William and Eric to provide verified accounts of the estate.

12 On 3 April 2020, William and Eric filed a defence to the plaintiffs' statement of claim in which they denied they were obliged to transfer the residuary estate to the plaintiffs on Zillah's death. The basis of their denial was that, by deed of assignment dated 20 November 1984 (assignment deed), the plaintiffs each assigned their shares in the residuary estate to RLF. William and Eric say that the assignment deed was notified to each of them and Zillah on the day it was executed with effect that they and Zillah as trustees of the estate, became bound, upon Zillah's death, to transfer the residuary estate to RLF.

13 Further, William and Eric say that they now hold the residuary estate on trust for RLF, not the plaintiffs as, by virtue of the assignment deed, the plaintiffs have no beneficial interest in the estate. William and Eric assert they therefore have no obligation to provide accounts of the estate to the plaintiffs.

14 On 24 April 2020, the plaintiffs filed a reply to William and Eric's defence. By their reply, the plaintiffs admit executing the deed of assignment on or about 20 November 1984 but say that the deed is void or voidable on the basis that:

(a) two of the plaintiffs, Simon Fay (Simon) and Josephine Fay (Josephine) were minors at the time the deed was executed and those plaintiffs did not ratify the deed upon attaining majority age;

(b) the deed was procured as a result of Zillah's undue influence; and

(c) in procuring the deed, Zillah was acting for RLF.

15 The plaintiffs also pleaded that pursuant to the 'fair-dealing rule', the assignment deed should be set aside. They say:

(a) the trustees of the estate took advantage of their position as trustees in relation to the assignment deed;

(b) the trustees did not make full disclosure of the effect of the assignment deed to the plaintiffs; and

(c) the assignment deed was not fair and honest in relation to the plaintiffs.

16 The plaintiffs pleaded further and in the alternative that they were at a special disadvantage in dealing with RLF in relation to the assignment deed and RLF unconscientiously took advantage of the plaintiffs' special disadvantage. Finally, and also in the alternative, the plaintiffs pleaded that they did not receive the payments due under the terms of the assignment deed.

17 On 31 July 2020, this Court ordered RLF be added as a party to the proceeding. The Court also made orders for the plaintiffs to file an amended statement of claim, the defendants to file defences, the parties to provide discovery, file evidence and attend mediation.

18 On 5 August 2020, the plaintiffs filed an amended originating motion and statement of claim pursuant to the Court's orders of 31 July 2020. The effect of the amended documents was to add RLF, incorporate the matters pleaded in the plaintiffs' reply of 24 April 2020 into the amended statement of claim and to add a declaration to the relief sought that the assignment deed is void or alternatively voidable and that it be set aside.

19 On 13 August 2020, the solicitors acting for William and Eric ceased acting and on 14 August 2020, commenced acting for RLF.

20 Neither William nor Eric has filed a defence to the plaintiff's amended originating motion and statement of claim filed 5 August 2020.

21 RLF filed a defence on 28 August 2020. RLF pleaded the identity of its shareholders at the time of EP's death and as at 28 August 2003 which included Simon (the third plaintiff) and the fifth plaintiff, Desmond Fay (Demond). RLF say that as at 28 August 2003, Simon and Demond transferred their shares in RLF to other existing shareholders.

22 RLF, relying on the assignment deed, denies that William and Eric were, on Zillah's death, obliged to transfer to the plaintiffs their share of the residuary estate. It says that from 20 November 1984, William, Eric and Zillah were bound, upon Zillah's death, to transfer any residuary estate to RLF.

23 RLF denies the assignment deed is void or voidable, denies that under the terms of the assignment deed, the transfer of the plaintiffs' interests in the residuary estate was subject to a condition subsequent bringing the assignment to an end in the event the plaintiffs had not received payment in full of the sum specified in the deed by 20 November 1994. RLF denies that Simon and Josephine did not ratify the assignment deed on reaching the age of majority and says that even if the assignment deed has been avoided by them, that avoidance does not avoid the operation of the assignment deed in respect of the other plaintiffs.

24 RLF denies the assignment deed was procured by undue influence. It says the plaintiffs received legal advice prior to entering into the assignment deed. It denies Zillah was acting for RLF in procuring the plaintiffs' execution of the assignment deed.

25 RLF denies that any transfer of the plaintiffs' interest in the residuary estate to it under the assignment deed constitutes a sale to the trustees of the estate for the purposes of the fair-dealing rule and says that the fair dealing rule did not apply to it. It denies the plaintiffs were at a special disadvantage or that it unconscientiously took advantage of the plaintiffs' special disadvantage. RLF denies that the plaintiffs did not receive the payments due under the terms of the assignment deed.

26 RLF pleads that the rights of the plaintiffs as beneficiaries of the estate were several and so the plaintiffs must each establish a separate right to have the assignment deed set aside.

27 In the alternative, RLF pleads that Simon and Desmond were involved in previous proceedings in the Federal Court of Australia involving William, Eric, Zillah and itself (along with two other siblings who are not parties to this proceeding) (Federal Court proceeding). That proceeding was resolved by execution of a deed of settlement (settlement deed) by which Simon and Desmond released the other parties from claims against them, including the claims made against RLF in this proceeding.

28 Additionally, RLF pleads Anshun estoppel in relation to the claims by Simon and Desmond and laches and/or acquiescence in relation to all claims made by all plaintiffs against it.

29 On 11 September 2020, the plaintiffs filed a request for further and better particulars of RLF's defence. In response, RLF filed further and better particulars on 5 February 2021.

30 On 11 December 2020, the plaintiffs filed a reply to RLF's defence. The plaintiffs deny they received legal advice in relation to the assignment deed, and say that if they did, the advice was provided by solicitors of the trustees of the estate and was not impartial or independent. They admit that the settlement deed signed in resolution of the Federal Court proceeding compromised some claims, but say the claims made by Simon and Desmond as set out in this proceeding were not compromised.

31 On 17 February 2021, the plaintiffs filed another request for further and better particulars of RLF's defence.

32 On 28 June 2021, RLF filed consolidated further and better particulars of defence.

33 On 5 August 2021, the proceeding came before this Court for directions. The Court extended the time for William and Eric to provide discovery and file evidence in opposition to the relief sought by the plaintiffs. The Court also extended the time for the plaintiffs to file responsive evidence and for the parties to attend mediation.

34 On 11 October 2021, the plaintiffs filed another request for further and better particulars of RLF's defence. The plaintiffs requested that RLF:

Specify with all material matters, dates and places, each act, fact, matter, event, occurrence, circumstance, communication, document or thing relied upon in support of the allegation in paragraph 22A(7) of [RLF's] defence dated 28 August 2020 that as at 20 November 1984 the Properties had a freehold value of approximately $130,837.50.

35 On 26 October 2021, the plaintiffs filed a summons seeking leave to amend their amended statement of claim in terms of a minute of proposed statement of claim provided to the defendants on 3 September 2021 and an order that RLF file further and better particulars in response to the plaintiffs' request of 11 October 2021.

36 The defendants do not object to the plaintiffs' application for leave to file the further amended statement of claim[4], save that they oppose paragraph 31 and 32. These two paragraphs, addressed below, are the only matters of contention in the plaintiffs' application for leave to file a further amended statement of claim.

37 The plaintiffs' uncontested proposed amendments include pleading the value of the real property at the time the assignment deed was entered into, expanding the allegation to include assertions that both William and Zillah procured the plaintiffs' execution of the assignment deed on behalf of RLF.

38 The plaintiffs proposed paragraphs 31 and 32 are in the following terms:

31. The plaintiffs have suffered loss as a result of the first and second defendants' refusal to have transferred to them the residue of the estate of Mr EP Fay.

Particulars

The plaintiffs have been deprived of the opportunity since the death of Zillah Fay on 29 September 2017 to use the residue of the estate for any purpose, including sale.

32. The first and second defendants have profited from their refusal to have transferred to the plaintiffs the residue of the estate of Mr EP Fay.

Particulars

Since the death of Zillah Fay on 29 September 2017, the first and second defendants have farmed the farming land component of the Properties without accounting to the plaintiffs for any profits derived from the farming.

39 The plaintiffs also seek to amend the relief sought to include orders requiring William and Eric to pay equitable compensation or alternatively, an account of profits including interest. The addition of this relief is opposed by the defendants.

40 The parties were in agreement about the legislative provisions and legal principles relevant to applications to amend pleadings.

41 Rule 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) provides that the Court may, at any stage, order amendment to any document for the purpose of determining the real question in controversy between the parties, correcting any defect or avoiding a multiplicity of proceedings.

42 A party may amend any pleading served by that party once before the close of pleadings or at any time by leave of the Court or with the consent of all other parties: r 36.04 Rules. There is no entitlement to a grant of leave to amend.[5] The applicant for leave bears the onus of satisfying the Court of the grounds for exercising the discretion favouring leave.

43 The Court's rules must be interpreted in a way that gives effect to the overarching purpose of the Civil Procedure Act 2010 (CPA) and the rules of court in relation to civil proceedings[6]: to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute (s 7 of the CPA).

44 Subsection 9(1) of the CPA sets out the objects the court will have regard to in furthering the overarching purpose including, the just determination of the civil proceeding; the public interest in early settlement of disputes; the efficient conduct of the court's business; the efficient use of judicial resources; minimising delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps necessary for the fair and just determination of the real issues in dispute and the preparation of the case for trial; the timely determination of the civil proceeding and dealing with civil proceedings in a matter proportionate to their complexity and the amount in dispute.

45 For the purposes of s 9(1) of the CPA, the court may have regard to the matters listed in s 9(2). These include the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute; the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps; any prejudice that may be suffered by a party as a consequence of any proposed order or direction and the extent to which the parties have had the benefit of legal advice and representation.

46 Where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation of the delay will be called for.[7] The Court will have regard to the following relevant matters:

(a) the nature and importance of the proposed amendment to the party applying for it;

(b) the extent of delay and costs associated with allowing the amendment;

(c) any prejudice that may flow if the amendment is allowed;

(d) the explanation for the delay;

(e) the parties' choices to date in the conduct of the litigation;

(f) detriment flowing to other litigants of the court; and

(g) the potential loss of public confidence where courts grant leave without adequate explanation or justification.[8]

47 If an amendment is aimed at tidying up the pleading to ensure the issues are clearly defined and well understood, the case will be stronger for allowing the amendment than a proposed amendment that seeks to raise a new case.[9] If the proposed amendment seeks to add a new case, the court should not allow the amendment if that case has no prospect of success.[10]

48 The weight the Court gives to any one particular factor in determining whether to grant leave to amend will vary depending on the facts of the individual case. A just resolution of proceedings remains the paramount consideration. While speed and efficiency are essential to a just resolution of a proceeding, that should not detract from the parties being given a proper opportunity to plead their case.[11]

49 Rule 13.11 allows the Court to order a party to serve on another party particulars or further and better particulars of any fact or matter stated in the party's pleading. The Court may refuse to order particulars if the party wanting particulars has not first requested them by letter.

50 The function and objects of particulars are well known and need not be rehearsed again here. It is sufficient to note that it is impermissible to seek particulars for the sole purpose of ascertaining the evidence by which an opposing party intends to prove its case.

51 The plaintiffs say their application to amend is not a late application. The plaintiffs foreshadowed their amendment application with the defendants in September 2021 and filed their summons seeking leave to amend in October 2021. There was no trial date at the time the plaintiffs foreshadowed their amendment application and no trial date has since been set. Mediation of the parties' dispute is yet to occur.

52 The plaintiffs concede that their proposed amendments raise new claims but say those claims arise out of the same facts. The plaintiffs submit that, contrary to the positions advanced by the defendants, the dispute is not confined to the terms of the assignment deed, but concerns its validity stemming from serious allegations against William and Eric in their capacity as executors and trustees of the estate. The plaintiffs' case is that William and Eric took advantage of their position as trustees in relation to the assignment deed including by not ensuring the plaintiffs properly understood the effect of the assignment deed and not informing the plaintiffs that the assignment deed was an improvident transaction. If the plaintiffs are successful in obtaining the declarations currently sought, they submit they would be entitled to come back for enforcement orders. The plaintiffs argue it is better for all parties to know upfront that the plaintiffs are seeking equitable compensation because it avoids the possibility of a separate proceeding.

53 The plaintiffs further submit that because William and Eric have not filed a defence to the statement of claim dated 5 August 2020, they have not responded to the plaintiffs' allegations that they have taken advantage of their position as trustees. The plaintiffs also point to William and Eric's unsatisfactory compliance with orders for discovery as a matter contributing to the delay in bringing the proceeding to trial.

54 The plaintiffs rely on the following factors as favouring the exercise of the discretion to grant leave to amend their statement of claim:

(a) the proposed amendments are succinct and of limited scope;

(b) it is important that trustees should be held to account where there are arguable claims that they have benefited from breach of their duties;

(c) the monetary value of the claim against William and Eric is likely to be substantial;

(d) the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding;

(e) the proceeding has not been listed for trial, mediation has not taken place and interlocutory processes are not complete; and

(f) there is no prejudice to the defendants.

55 In relation to the proposed order for further and better particulars, the plaintiffs concede that they are not entitled to RLF's evidence regarding the value of the real property but submit that they are entitled to know how, that is, by what method, RLF has calculated the value. The plaintiffs say that if they were provided with this information it would assist the court in narrowing the issues in dispute.

56 RLF submits that the critical issue on the current pleading is whether the assignment deed is binding on the plaintiffs or whether they are entitled to a declaration that the assignment deed be set aside.

57 RLF says the plaintiffs' proposed paragraphs 31 and 32 and the additional relief sought introduce entirely new claims against Willian and Eric, and if allowed, will delay the proceeding advancing to trial and add to the duration of the trial.

58 RLF contends that the plaintiffs have not explained why they seek to make this amendment now and why it was not included in their amended statement of claim in August 2020. It says that pleadings have been closed for more than one year, discovery is complete and trial affidavits have been filed. Subject to mediation, RLF says the proceeding is ready for trial.

59 RLF says that, because the way the plaintiffs have pleaded their case, William and Eric have not played an active role and have effectively left RLF, as assignee under the assignment deed, to defend the proceeding. If the plaintiffs are allowed to further amend their amended statement of claim to include paragraphs 31 and 32, the defendants will necessarily have to revisit the manner in which the claims have been defended. In particular, William and Eric will need to file defences to the further amended statement of claim and make discovery of documents regarding the use of the property since Zillah's death in 2017, revisit their filed evidence and take an active role in defending the proceeding.

60 RLF also submits that the proposed amendments to add paragraphs 31 and 32 have no real prospect of success because they rely on the proposition that William and Eric are under a present obligation to transfer the property to the plaintiffs. RLF says that in the context of the current dispute between the plaintiffs and RLF about who is entitled to the residuary estate following Zillah's death, William and Eric have acted reasonably in waiting for a resolution of this proceeding before taking any steps to transfer the property. William and Eric could not have transferred the property to the plaintiffs without exposing themselves to a claim by RLF.

61 RLF also submits that the proposed amendments to add paragraphs 31 and 32 have no real prospect of success because they rely on the proposition that William and Eric are under a present obligation to transfer the property to the plaintiffs. RLF says that in the context of the current dispute between the plaintiffs and RLF about who is entitled to the residuary estate following Zillah's death, William and Eric have acted reasonably in waiting for a resolution of this proceeding before taking any steps to transfer the property. William and Eric could not have transferred the property to the plaintiffs without exposing themselves to a claim by RLF.

62 RLF says that the plaintiffs' request for further particulars is objectionable because its sole object is to ascertain the evidence by which the opposing party intends to prove its case.

63 William and Eric oppose leave being granted to the plaintiffs to further amend their statement of claim to include proposed paragraphs 31 and 32.

64 William and Eric submit the plaintiffs' proposed monetary claims against them are contingent on the plaintiffs' success against RLF in having the assignment deed set aside. If the plaintiffs are unsuccessful in having the assignment deed set aside, William and Eric's preparation for the hearing of the monetary claims would be wasted.

65 William and Eric submit the claim involving the validity of the assignment deed as against the proposed money claim involve different time periods and different factual matrices with little factual overlap. The former involves the circumstances surrounding the entry into the assignment deed. The latter effectively involves an account for monies for the use of the land in question since Zillah's death in 2017.

66 William and Eric submit they would be prejudiced if the amendment is allowed while there would be no prejudice to the plaintiffs if the amendment was not allowed. The prejudice to William and Eric would be in the form of significant additional expenditure and delay as William and Eric would be required to take an active role in defending the proceeding and provide additional discovery. The plaintiffs would not be prejudiced because if they are successful, William and Eric will be required to provide an account of the estate and it would be open to the plaintiffs to seek further orders in the event they are not satisfied with those accounts.

67 The plaintiffs seek to amend their statement of claim to explicitly plead their loss and William and Eric's profit flowing from William and Eric's breach of their obligations as trustees of EP's estate. It must be remembered that the plaintiffs have already pleaded William and Eric's obligations as trustees and their failure to transfer the residuary estate. The contested amendments would found the plaintiffs' proposed new claim for equitable compensation. It follows that I cannot accept that the current claim is only about the enforceability of the assignment deed.

68 The original claim sought declarations that William and Eric hold the property on trust for the plaintiffs and orders for the transfer of the property to the plaintiffs. That claim was based in William's and Eric's obligations as trustees of the estate at the time of Zillah's death. The existence and content of their obligations as trustees of the estate will be determined at trial.

69 In my view, while the plaintiffs seek to bring a separate claim against William and Eric, that claim arises inferentially out of the matters already pleaded and involves the existing parties. In this regard, I note the High Court's assessment that the authorities do not suggest that an unduly narrow approach should be taken to what are the real issues in controversy between the parties.[12]

70 The plaintiffs' proposed amendments are clearly important. If the plaintiffs are successful in making out that William and Eric have breached their obligations as trustees of the estate, all parties acknowledge the possibility of further litigation in relation to the estate's accounts. The plaintiffs and William and Eric acknowledge that the plaintiffs' monetary claim is likely to be substantial. If the amendments are allowed, all issues between the parties could be determined within one proceeding.

71 I agree with RLF that the reason for the plaintiffs' delay in amending their statement of claim to include a claim for equitable damages is not well explained. The plaintiff says their proposed amendments really just makes explicit that the plaintiffs claim loss flowing from the failure to transfer the property and that William and Eric have profited. I accept that breach of trustees duties was, at least inferentially, always part of the plaintiffs' claim however, the question of why the plaintiffs did not explicitly include the proposed amendments at the time they amended their claim on 5 August 2020 is not satisfactorily explained. The plaintiffs' assertion that there has not been delay because the defendants have been on notice of the proposed amendments since September 2021 does not address the delay occurring in the period before that date.

72 I do not agree, however, with RLF's submission that adequate explanation for delay is a precondition of the exercise of the discretion to grant leave to amend. The discretion is to be exercised in light of a range of factors, none of which is a precondition. A just resolution of the proceeding remains the paramount consideration.

73 It is likely that the trial length will be extended if the amendment is allowed. A major focus of the trial, on the current pleading, will no doubt involve the circumstances under which the parties entered into the assignment deed in 1984. It will also require an examination of what payments were made to the plaintiffs in the 10 years following the execution of the assignment deed and, at least in relation to Simon and Desmond, an examination of the scope of the releases provided in the settlement deed entered into in the context of the Federal Court proceeding in 2003. In these circumstances, the fact that the plaintiffs' proposed amendments will require examination of the further distinct time period is not such a negative factor in assessing whether leave should be granted to allow the amendment.

74 The length of the trial will ultimately depend on the case management approach of the trial judge, following submissions from the parties. The trial judge may determine that the hearing and determination of the issue of the validity of the assignment deed should occur before the hearing of other issues.

75 If the plaintiffs are granted leave to amend their claim to include paragraphs 31 and 32, there will be consequential delay in bringing the proceeding to trial. I accept the plaintiffs' submissions that any delay needs to be considered in the context of the delay occasioned by William's and Eric's failure to provide timely discovery. I also accept RLF's submission that the current claim is largely ready for hearing subject to mediation being convened and that the uncontested amendments to the plaintiffs' claim are unlikely to require significant additional resources in terms of work or time. Against this is the fact that if the amendment is allowed, it will obviate the need for further possible proceedings in future.

76 I accept that William and Eric have chosen not to take an active role in defending the plaintiffs' claims as currently pled, relying on the defence filed by RLF. It is inevitable that if leave is granted to the plaintiffs to amend their claim to include paragraphs 31 and 32, that William and Eric will be required to provide further discovery, file defences and review their filed evidence.

77 I am not satisfied that the plaintiffs' proposed amendments have no real prospect of success, applying the same test as for applications for summary judgment. In my view, the plaintiffs' claim is clearly arguable, notwithstanding the defendants' foreshadowed defence.

78 In my view, allowing the amendment would identify the real issues in dispute between the parties and avoid a multiplicity of proceedings.

79 Weighing all of these factors, it seems to me that the overarching purpose is best achieved by granting the plaintiffs leave to amend their statement of claim.

80 I agree with RLF that the plaintiffs' request for further particulars amounts to a request for the evidence by which RLF intends to prove their allegation of the value of the property. The plaintiffs' request is impermissible and their application for an order for the provision of particulars will be dismissed.

81 For the reasons provided above, I will grant leave to the plaintiffs to file a further amended statement of claim in the form provided to the defendants on 3 September 2021 but will otherwise dismiss the plaintiffs' summons dated 26 October 2021.

82 I request that the parties confer and provide agreed orders giving effect to these reasons, including consequential timetabling orders. In the absence of agreement between the parties, I will hear from the parties on the question of costs.

RIPON LEA FARMING COMPANY PROPRIETARY LIMITED (ACN 004 568 245)

[1] The plaintiffs' statement of claim was filed 13 March 2020 and the amended statement of claim was filed 5 August 2020. The plaintiffs, by the summons filed 26 October 2021, seek leave to file an amended statement of claim in the terms as provided to the defendants on 3 September 2021. To avoid confusion, I have referred to the amended statement of claim the subject of the plaintiffs' application for leave as the 'further amended statement of claim'.

[2] I shall refer to the parties and named persons by their first names for ease of reading and to avoid any confusion. No disrespect is intended.

[3] The house and farm are situated across two lots being, Lot 20 on plan of subdivision 005215 and being the whole of the land described in certificate of title volume 03413 folio 579; and Lot 1 on title plan 854441R and being the whole of the land described in certificate of title volume 04947 folio 263.

[4] William and Eric do not object, whilst RLF otherwise consents to the further amended statement of claim, save for the addition of paragraphs 31 and 32.

[5] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, [96] (Aon Risk).

[6] Section 8 of the CPA.

[9] Pascoe v Boensch [2009] FCA 1240, [79].

[10] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [43] per Kyrou, Ferguson and McLeish JJA.