Simmons v Henwood

Background 20The proceeding concerns a grazing property situated in the Brewarrina District (the Property). The total area of the Property is approximately 17,823 acres. The Property consists of two separate parcels, which are separated by a distance of approximately 40km. One parcel is referred to as Goonoo and the other is referred to as Letona. At the relevant times, the Property was held under Western lands leases granted under the Western Lands Act 1901. 21Until mid 1994, the Property was owned by Mrs Agnes Simmons. Agnes Simmons is the mother of Father Simmons and the mother-in-law of Dorothy Simmons, who was married to John Simmons, another son of Agnes Simmons. On 21 July 1992, the management of the affairs of Agnes Simmons was committed to the Commissioner. On 2 December 1995, Agnes Simmons died, leaving her estate to Father Simmons. 22On 28 June 1994, the Commissioner completed the sale of the Property to Mr Henwood. Shortly thereafter, Mr Henwood transferred part of the Property to Dorothy Simmons (Dorothy's parcel). Following completion of the sale by the Commissioner to Mr Henwood, a transfer was registered under the Real Property Act 1900, such that Mr Henwood became the registered proprietor of the Property. Thereafter, a transfer from Mr Henwood to Dorothy Simmons was registered and Dorothy Simmons became the registered proprietor of Dorothy's parcel. 23In an earlier proceeding between Father Simmons and Agnes Simmons (the Earlier Proceeding), the Court of Appeal declared on 14 November 1994 that Father Simmons was entitled to have carried through and registered a transfer of the Property, from Agnes Simmons to Agnes Simmons and himself as joint tenants, subject to any ministerial consent required by the Western Lands Act. The Court of Appeal also ordered that the Commissioner do all things and take all steps necessary to have the title to the Property registered in the names of Agnes Simmons and Father Simmons as joint tenants. However, on 9 August 1995, after the attention of the Court of Appeal had been drawn to the transfer of the Property from Agnes Simmons to Mr Henwood, the Court of Appeal varied its orders. In lieu of those orders, the Court of Appeal declared that the net proceeds of the sale of the Property were held by the Commissioner in trust for Father Simmons and Agnes Simmons as joint tenants and ordered that the Commissioner deal with the net proceeds accordingly. 24The primary judge concluded that, in the light of the orders made by the Court of Appeal in the Earlier Proceeding, the proceeding by Father Simmons against the Respondents was an abuse of process, as it was inconsistent with those orders. His Honour also concluded that, since the Respondents had become registered proprietors of the respective parts of the Property under the Real Property Act, and there was no allegation of fraud against them in the proceeding, the claims made against them by Father Simmons in the proceeding could not succeed because of the operation of s 42 of the Real Property Act. Section 42 has the effect that, except in case of fraud, the registered proprietor for the time being of any estate or interest in land under the Real Property Act holds that estate or interest absolutely free from all other estates that are not so recorded.

The Present Proceeding 25In his statement of claim, Father Simmons made allegations against the Commissioner of breach of trust and breach of fiduciary duty. Father Simmons claimed aggravated and exemplary damages against the Commissioner. He also sought declaratory and other relief based on the alleged breach of trust and breach of fiduciary duty. 26In his statement of claim, Father Simmons also made the following allegations against the Respondents:

• at all material times, Agnes Simmons was the registered proprietor of the Property;
• in about July 1987, Agnes Simmons agreed, for consideration, to transfer the Property to herself and Father Simmons as joint tenants (the 1987 Agreement);
• on 6 April 1988, in furtherance of the 1987 Agreement, Father Simmons and Agnes Simmons entered into a partnership for the purpose of carrying on a farming and grazing business on the Property;
• on 29 August 1989, in furtherance of the 1987 Agreement, Agnes Simmons executed a transfer of the Property from herself to herself and Father Simmons as joint tenants, and registered that transfer on 17 December 1991;
• the Registrar General de-registered the transfer on 18 February 1992, as a consequence of registration having been effected more than 6 months from the date when the Western Lands Commissioner granted consent to the transfer;
• on 24 December 1993, the Commissioner exchanged contracts with Mr Henwood for the sale of the Property for a purchase price of $390,000;
• the sale of the Property to Mr Henwood was completed on 28 June 1994;
• the entry into the contract with Mr Henwood and the sale of the Property to Mr Henwood were done by the Commissioner in breach of trust or in breach of fiduciary duty;
• at the time of the sale of the Property to Mr Henwood, Mr Henwood had notice and was aware of the unregistered interest of Father Simmons in the Property and purchased the Property knowing that there was a risk that Father Simmons had a subsisting interest in the Property to which Mr Henwood's interest would be subject;
• in the premises, the sale of the Property to Mr Henwood was and is void or voidable and should be set aside and Mr Henwood holds the Property upon constructive trust for Father Simmons;
• prior to, or shortly after, purchasing the Property, Mr Henwood entered into an informal arrangement or agreement with Dorothy Simmons to transfer a part of the Property to Dorothy Simmons;
• within weeks of the sale of the Property to Mr Henwood having been completed, Mr Henwood took steps to transfer that part of the Property to Dorothy Simmons for a consideration of $28,608, which was substantially less than the market value of that part of the Property at the time the transfer occurred;
• Mr Henwood obtained the consent of the Western Lands Commissioner and the Minister for the transfer of the part of the Property to Dorothy Simmons, executed a transfer under the Real Property Act of that part of the Property and registered that transfer;
• at the time of the transfer of that part of the Property from Mr Henwood to Dorothy Simmons, Dorothy Simmons had notice and was aware of Father Simmons' unregistered interest in the Property and received that part of the Property knowing that there was a risk that Father Simmons had a subsisting interest in that part of the Property to which her interest would be subject; and
• in the premises, the transfer of the relevant part of the Property by Mr Henwood to Dorothy Simmons was and is void or voidable and should be set aside, and Dorothy Simmons holds the relevant part of the Property upon constructive trust for Father Simmons 27Father Simmons claimed the following relief against the Respondents:
• a declaration that the sale of the Property by the Commissioner to Mr Henwood was void or voidable and should be set aside;
• a declaration that Mr Henwood holds part of the Property on constructive trust for Father Simmons; and
• a declaration that Dorothy Simmons holds part of the Property upon constructive trust for Father Simmons. 28Following service of the statement of claim, each of the Respondents, through their respective solicitors, sought further particulars of Father Simmons' claims. The applications for summary dismissal were dealt with by the primary judge on the basis that the particulars given further articulated the claims made by Father Simmons against the Respondents. 29In response to Mr Henwood's request, Father Simmons' solicitors asserted that Mr Henwood took title to the Property knowing of the unregistered interest of Father Simmons and knowing that there was a risk that Father Simmons had a subsisting interest in the Property. The particulars asserted, in addition, that Mr Henwood held his interest in the Property on constructive trust for Mr Simmons, on the basis that he knowingly participated, and was involved, in the breach of fiduciary duty by the Commissioner and on the basis that the remedy of a declaration of a constructive trust was the appropriate remedy in the circumstances. In the alternative, it was asserted that Father Simmons claimed equitable compensation. In response to the request for particulars of the allegation of notice and awareness of the unregistered interest of Father Simmons, the response simply repeated the allegations in the statement of claim. 30Mr Henwood's solicitors also asked whether Father Simmons alleged fraud on Mr Henwood's part, in taking title to the Property. Significantly, there was no response by the solicitor for Father Simmons. 31Father Simmons' solicitors also provided further particulars in response to a request made by the solicitors for Dorothy Simmons. The particulars provided may be summarised as follows:
• on 22 April 1993, Mr Henwood made an offer to purchase part of the Property, consisting of between 600 and 800 acres, at $20 per acre;
• on 13 May 1993, Mr Henwood offered to purchase the entire Property, consisting of the homestead block, at $20 per acre ($192,060), and the Letona block, at $15 per acre ($123,300);
• Mr Henwood acknowledged that the offer had been made by two separate parties, both of whom were agreeable to Dorothy Simmons purchasing her house and surrounding paddock after the sale had been settled;
• on 28 June 1993, the Commissioner indicated that it proposed to sell the Property to an associate of Mr Henwood for the sum of $363,300;
• on 5 July 1993, the purchasers were identified as Mr Henwood and Dorothy Simmons; and
• the sale proceeded to Mr Henwood alone on 30 June 1994 and, on 24 October 1994, part of the Property was transferred by Mr Henwood to Dorothy Simmons. 32In response to the assertion in the statement of claim that the consideration for the transfer by Mr Henwood to Dorothy Simmons was substantially less than the market value, Father Simmons' solicitors provided the following particulars:
• on 29 August 1989, the Property was valued at $535,000, including structural improvements valued at $165,000;
• on 24 June 1993, Dorothy Simmons' agent valued the Property at $363,000, including $240,000 for the homestead block, on the basis of $25 per acre;
• the part of the Property that was transferred to Dorothy Simmons consisted of approximately 1199 acres and included the structural improvements;
• the consideration for the transfer to Dorothy Simmons, of $28,608, at approximately $23.85 per acre, did not account for the value of the structural improvements valued at $165,000. Accordingly, the market value of the part transferred was significantly greater than the consideration paid. 33By way of particularising the constructive trust alleged, Father Simmons' solicitors said:
• Dorothy Simmons assumed title to part of the Property with the knowledge of the unregistered interest of Father Simmons and of the fact that Father Simmons had a subsisting interest in the Property; and
• she knowingly participated in, and was involved in, the breach of fiduciary duty by the Commissioner. The solicitors said that, if declaration of a constructive trust were not the appropriate remedy, then Father Simmons would claim equitable compensation. 34In his defence, Mr Henwood said, in answer to the whole of Father Simmons' claim against him, that his title to the Property is and was paramount by reason of the operation of s 42 of the Real Property Act. Dorothy Simmons said in her defence, in answer to the claims made against her in the statement of claim, that she relied upon s 42 of the Real Property Act. Father Simmons did not file a reply. 35In so far as s 42 of the Real Property Act is relied on by way of defence, the allegation of fraud is an exception to that defence. Accordingly, the appropriate course would have been for Father Simmons to file a reply alleging fraud, as an answer to the reliance on s 42 of the Real Property Act. That is to say, it may not necessarily have been incumbent upon Father Simmons to allege fraud in his statement of claim. That may have some significance in relation to the appropriate relief in the appeal, for reasons that will be explained below.

The Earlier Proceeding and the Transfer of the Property 36For many years, Dorothy Simmons lived on that part of the Property known as Letona. John Simmons, her husband, took on the management of the grazing business conducted on the Property following the death of his father in 1949. John Simmons died in 1977 but Dorothy Simmons continued to live on Letona. 37In September 1987, Agnes Simmons granted to Dorothy Simmons a lease of the Property for a term of four years. The lease excluded the house in which Agnes Simmons and Father Simmons lived, together with one hectare of land surrounding that house. 38In April 1988, Father Simmons and Agnes Simmons signed a partnership agreement for the carrying out of a partnership as farmers and graziers on the Property. It is not clear how the lease to Dorothy Simmons sits with the partnership agreement alleged to have been entered into between Father Simmons and Agnes Simmons. In any event, steps were thereafter taken by Agnes Simmons to transfer title to the Property into the names of herself and Father Simmons as joint tenants. 39In September 1988, Dorothy Simmons lodged a caveat in respect of the Property, claiming an interest as lessee under the lease of September 1987. In August 1990, Agnes Simmons gave Dorothy Simmons notice to quit, requiring vacation on 23 September 1991. That would have been the expiration of the term of the lease of September 1987. In July 1991, Agnes Simmons, through her solicitors, requested removal of the caveat lodged by Dorothy Simmons. Subsequently, a summons for removal of the caveat was filed and the caveat was removed following an order made by Master Windeyer, as he then was, on 18 October 1991. 40However, Dorothy Simmons then lodged a further caveat claiming an interest that was confined to Letona. The caveat lapsed following an application to the Land Titles Office made on 18 October 1991. Subsequently, four daughters of Agnes Simmons lodged a caveat in respect of the Property, asserting equitable interests based on promises and representations that they alleged had been made by Agnes Simmons. That caveat also lapsed. 41On 19 December 1991, following the lapsing of the third caveat, a transfer of the Property from Agnes Simmons to herself and Father Simmons was registered by the Registrar General. New certificates of title dated 17 December 1991 were issued for the Property showing Agnes Simmons and Father Simmons as the registered proprietors as joint tenants. However, on 18 February 1992, the Registrar General reversed the registration of the transfer to Agnes Simmons and Father Simmons on the basis that the transfer was not valid, since it had not been registered within the period prescribed by s 18G(1)(b) of the Western Lands Act, which required registration within 6 months of the consent of the Minister. 42On 20 February 1992, Dorothy Simmons commenced a proceeding in the Supreme Court of New South Wales (No 1661/92) against Agnes Simmons and Father Simmons. Father Simmons filed a cross-claim against Agnes Simmons and Dorothy Simmons asserting his interest as a joint tenant in the Property under the 1987 Agreement. The claims by Dorothy Simmons against Agnes Simmons and Father Simmons were subsequently compromised or abandoned. The cross-claim was also abandoned as against Dorothy Simmons. Accordingly, the only lis left on foot was the cross-claim by Father Simmons against Agnes Simmons. 43In circumstances that are not entirely clear, an order for the management of the estate of Agnes Simmons under the Protected Estates Act 1983 was made on 21 July 1992. That did not come to the notice of the solicitors for Father Simmons until very shortly before the cross-claim came on for trial before Windeyer J on 27 July 1993. When the hearing commenced on that day, orders were made to enable the proceeding to continue with the Commissioner as tutor for Agnes Simmons. 44In early July 1993, before the commencement of the hearing of the cross- claim, Dorothy Simmons made an interlocutory application for an order restraining the Commissioner from dealing with the Property. The Commissioner opposed the application. On 14 July 1993, Hulme J granted an interlocutory injunction up to and including 30 July 1993 restraining the Commissioner from dealing with the Property. In the meantime, the trial of the cross-claim commenced before Windeyer J and the injunction was not extended. 45Father Simmons gave evidence at the trial before Windeyer J and was cross-examined. Dorothy Simmons was called by the Commissioner and was also cross-examined. Windeyer J accepted the evidence of Father Simmons and was satisfied that there was an agreement under which Agnes Simmons agreed to enter into partnership with Father Simmons and transfer the Property to herself and Father Simmons as joint tenants, on the basis that Father Simmons would agree to manage the Property and look after Agnes Simmons and care for her. 46However, Windeyer J found that there was insufficient memorandum in writing of the terms of the 1987 agreement and that there had been no part performance of the kind necessary to take the matter out of the operation of s 54A of the Conveyancing Act 1919. Windeyer J also found that there was no evidence that Father Simmons had suffered any detriment in reliance upon representations or a common intention and there was therefore no basis for an estoppel. Accordingly, on 28 September 1993, Windeyer J dismissed the cross-claim by Father Simmons (see Simmons v Simmons, Supreme Court of New South Wales, Equity Division, Windeyer J, 28 September 1993, unreported, No. 1661/92). 47On 19 October 1993, Father Simmons appealed from the orders made by Windeyer J. However, on 24 December 1993, before the hearing of the appeal, the Commissioner, on behalf of Agnes Simmons, entered into a contract for the sale of the Property to Mr Henwood. That prompted Father Simmons to make an interlocutory application for, inter alia, an injunction restraining the Commissioner from taking any steps to sell, encumber or dispose of the Property. That application was heard by Windeyer J, who considered that the balance of convenience lay in allowing the Property to be sold as soon was convenient. Having regard to the conclusion that he had reached that the claims by Father Simmons to have an interest in the Property should be dismissed, his Honour declined to restrain the sale. 48However, Windeyer J considered that there was no disadvantage in placing a restraint on the Commissioner in dealing with the proceeds of sale, so that they would be available to Father Simmons if he succeeded in his appeal. His Honour ordered that the Commissioner, as manager of the estate of Agnes Simmons, be restrained from dealing with the net proceeds of the sale of the Property other than for the purpose of investment. The order was to operate until the determination of the appeal to the Court of Appeal or until further order. 49The appeal was heard by the Court of Appeal on 24 March 1994. The Court of Appeal reserved its decision. 50On 28 June 1994, the contract for sale of the Property by the Commissioner to Mr Henwood was completed and, on 24 August 1994, a transfer from Agnes Simmons to Mr Henwood was registered under the Real Property Act. On 24 October 1994, a transfer from Mr Henwood to Dorothy Simmons of part of the Property was registered under the Real Property Act. 51On 14 November 1994, the Court of Appeal gave judgment on the appeal. The Court of Appeal found that Father Simmons had established an estoppel binding Agnes Simmons and that the appropriate relief would be to hold Agnes Simmons to the common understanding that had arisen between her and Father Simmons. Accordingly, the Court declared that Father Simmons has, since the execution of the transfer of the Property, been entitled to have the registration of that transfer carried through, subject to any ministerial consent necessary under the Western Lands Act. The Court also ordered that the Commissioner do all things and take all steps necessary to have the title to the Property registered in the name of Agnes Simmons and Father Simmons as joint tenants. 52In circumstances that are not entirely clear, the attention of the Court of Appeal was drawn to the fact that, after Windeyer J had decided the case at first instance, and before the hearing of the appeal, contracts for the sale of the Property had been exchanged on 24 December 1993. The Court of Appeal was also informed that, on 28 June 1994, after the argument but before judgment, the sale had been completed. Upon those matters being made known, the Court of Appeal indicated that it would make supplementary orders so that effect could be given to the substance of its judgment, in the changed circumstances of the case. Accordingly, on 9 August 1995 in lieu of the orders mentioned above, the Court of Appeal declared that the net proceeds of the sale of the Property were held by the Commissioner on trust for Father Simmons and Agnes Simmons as joint tenants and ordered that the Commissioner deal with the net proceeds accordingly.

The Decision of the Primary Judge 53Against the background of the Earlier Proceeding, Father Simmons commenced proceeding 2011/79920 in the Equity Division against the Commissioner, Mr Henwood and Dorothy Simmons. Notwithstanding that defences had been filed by all defendants, each of the Respondents applied by notice of motion for summary dismissal of the claims as against them. On 7 May 2012, the primary judge made orders for summary dismissal. 54In his reasons, the primary judge accepted the contentions advanced on behalf of the Respondents, that no reasonable cause of action had been disclosed against them and that the proceeding was an abuse of the process of the Court. His Honour accepted that it was incumbent upon the Respondents to show that there was no real question, whether of fact or law, to be tried, so that the proceeding was so clearly untenable that Father Simmons could not possibly succeed. His Honour considered that it was not incumbent upon the Respondents to establish certainty of outcome of the proceeding, but that it was sufficient to demonstrate that Father Simmons had no reasonable prospects of success. His Honour considered that, in the present case, the difference did not matter, because the Respondents had met the stricter test. 55The reasoning of the primary judge began with the proposition that the claims of Father Simmons against the Respondents depended upon his being able to establish the existence of an equitable interest in the Property and that the legal interest is presently held on constructive trust by the Respondents, such that it should be the subject of declarations in favour of him. That question arose against the background of Mr Henwood being the registered proprietor of the Property, apart from the part that was transferred to Dorothy Simmons, and of Dorothy Simmons being the registered proprietor of the part transferred to her. 56The primary judge then dealt with the significance of the Earlier Proceeding. His Honour observed that, by the orders made on 9 August 1995, the beneficial or equitable entitlement of Father Simmons to the Property was recognised in the form of declarations that the net proceeds of sale were held by the Commissioner for him and his mother. His Honour observed that, whatever beneficial entitlement Father Simmons may have had in the Property had passed into the judgment of the Court of Appeal and now consisted exclusively of an entitlement to the sale proceeds, as reflected in the orders of the Court of Appeal. Therefore, his Honour concluded, Father Simmons could not assert a beneficial entitlement to the Property and could have no cause of action against the Respondents in respect of any entitlement to the Property. 57The primary judge also concluded that the proceeding was an attempt to litigate or re-litigate the central issue decided in the Earlier Proceeding, culminating in the orders of the Court of Appeal, and was therefore an abuse of process. His Honour considered that the orders of the Court of Appeal not only represented the entirety of the entitlement of Father Simmons, but also implicitly recognised the efficacy of the transfer of the Property to Mr Henwood and the transfer of part of it to Dorothy Simmons. His Honour held that it did not matter that neither Mr Henwood nor Dorothy Simmons was party to the Earlier Proceeding, because the issue of the nature of the entitlement of Father Simmons in the Property was determined in the Earlier Proceeding. His Honour considered that the maintenance by Father Simmons' of his present claim was in direct conflict with the final judgment of the Court of Appeal and could not stand together with it. 58The primary judge then dealt with the application of s 42 of the Real Property Act. The primary judge held that, since Mr Henwood and Dorothy Simmons are the registered proprietors of their respective interests in the Property, Father Simmons, who is asserting an interest in the Property, must establish fraud on their part. His Honour observed that Father Simmons makes no claim in personam against either Mr Henwood or Dorothy Simmons for equitable compensation. His Honour observed that, if he had done so, it would have been incumbent upon him to plead and establish that they knowingly assisted in a dishonest and fraudulent design on the part of the Commissioner. Those observations appear to ignore the particulars, in which it was asserted that equitable compensation would be pursued in the alternative to the declaration of a constructive trust. 59The primary judge referred to a submission by counsel for Father Simmons, which his Honour described as somewhat surprising, that the statement of claim, read together with the further particulars provided by his solicitors, alleged fraud on the part of Mr Henwood and Dorothy Simmons. His Honour observed that fraud must be pleaded specifically and with particularity. His Honour considered that the allegations against Mr Henwood and Dorothy Simmons in the statement of claim could not, on any fair reading, amount to an allegation of fraud. 60The primary judge correctly observed that, for the purposes of s 42 of the Real Property Act, fraud requires dishonesty or moral turpitude, not merely constructive or equitable fraud where there is no dishonesty or intention to cheat. His Honour observed that there is no fraud, for the purposes of s 42, if a person does no more than acquire title and become the registered proprietor with notice of a prior unregistered interest and then assert that his or her title is free of that interest. 61The primary judge then referred to the response to the request for particulars in which the solicitors for Father Simmons failed to respond to the question as to whether Father Simmons alleged fraud in taking title to the Property. His Honour considered that, by that response, far from alleging fraud, Father Simmons' solicitors communicated that he declined to do so. His Honour considered that it was difficult to see how those who prepared the pleading could, on the material in the pleading and the further particulars, have been satisfied that fraud could be said to have been pleaded against Mr Henwood or Dorothy Simmons.

Grounds of appeal 62In the draft notice of appeal, filed in support of the application for leave to appeal, the following grounds of appeal are formulated:

1. The primary judge erred in holding that the doctrine of merger was a complete defence to the claims, by reason of the decision of the Court of Appeal, and in failing to have regard to the following matters:

• neither Mr Henwood nor Dorothy Simmons was a party to the Earlier Proceeding;
• the Court of Appeal found that Father Simmons has had an equitable interest in the Property since 1989, which is consistent with the claims presently made against Mr Henwood and Dorothy Simmons;
• Mr Henwood and Dorothy Simmons were aware, at the time they acquired their respective legal titles to the Property, of the interest of Father Simmons or of the circumstances that gave rise to that interest and the pending appeal; and
• the variation of the orders of the Court of Appeal was made in circumstances that are not the subject of challenge in the present proceeding and the sale of the Property to Mr Henwood in December 1993, after notice of appeal had been filed, with a view to sterilising the appeal, was a stratagem to defeat Father Simmons' equity in the Court of Appeal.

2. The primary judge erred in the hearing of the notices of motion for summary dismissal by dismissing the proceeding without giving Father Simmons the opportunity to replead his case and in finding that the proceeding as against Mr Henwood and Dorothy Simmons constituted an abuse of process.
3. The primary judge erred in holding that there was no sufficient basis for Father Simmons' contention that his interest in the Property had, by sharp practice, been acquired by Mr Henwood and Dorothy Simmons and in holding that no fraud within s 42 of the Real Property Act was asserted or available.
4. The primary judge erred in failing to consider properly, or at all, Father Simmons' case that equitable fraud, or fraud other than fraud with knowledge of a dishonest or fraudulent design, was sufficient to obtain the relief sought against Mr Henwood and Dorothy Simmons.
5. The primary judge erred in holding, or proceeding on the assumption, that apart from s 42 of the Real Property Act, Father Simmons has no remedy against Mr Henwood or Dorothy Simmons in equity by way of constructive trust. 63In the draft notice of appeal, Father Simmons claimed an order that he have leave to file and serve an amended statement of claim. A proposed amended statement of claim was attached to the written submissions originally filed in support of the application for leave to appeal. However, on the hearing of the application for leave, Father Simmons abandoned any claim before the Court of Appeal for the grant of leave to file an amended statement of claim. Accordingly, the Court has had no regard to the proposed amended statement of claim. 64Before dealing with the substance of the complaints foreshadowed in the proposed grounds of appeal, it is desirable to say something about the conduct of the proceeding before the primary judge. That is necessary in the light of the complaint on behalf of Father Simmons that the primary judge should have afforded him the opportunity of repleading his case against Mr Henwood and Dorothy Simmons. 65In dealing with the issue concerning s 42 of the Real Property Act, counsel for Father Simmons began with the proposition that Mr Henwood and Dorothy Simmons had bought the Property from the Commissioner before judgment in the Court of Appeal was handed down, thereby taking the risk that the Court of Appeal might uphold Father Simmons' interest in the Property. That proposition was emphasised by reference to the particulars referred to above. Counsel for Father Simmons reiterated that Mr Henwood was alleged in the statement of claim to have assumed title to the Property with knowledge of Father Simmons' unregistered interest and of the risk that he had a subsisting interest in the Property. Counsel asserted that Mr Henwood held his interest on trust for Father Simmons, on the basis that he knowingly participated in, and was involved in, the breach of fiduciary duty by the Commissioner. It is significant that no such allegation of knowing participation or involvement in a breach of duty by the Commissioner is alleged in the statement of claim. 66Counsel for Father Simmons then advanced the proposition that the Court of Appeal had found that Father Simmons had an equitable interest in the Property and made a declaration to that effect. He then asserted that it was only because the Commissioner, Mr Henwood and Dorothy Simmons "had got together and sold the interest" that the orders then became futile. There is no allegation in the statement of claim that any of the parties "got together" to do anything. 67Counsel for Father Simmons then asserted that "these people" dealt in the Property knowing of the risk, knowing that there was a claim by Father Simmons to a half interest in the Property, knowing that Windeyer J had held that there was a valid agreement to that effect and knowing that there was an appeal. In response to an observation by the primary judge that, on the face of it, that might be a very good case against the Commissioner, counsel for Father Simmons asserted that it was also a very good case against Mr Henwood and Dorothy Simmons, because they bought knowing those facts. 68Subsequently, counsel for Father Simmons drew attention to the fact that the statement of claim alleged, not only knowledge by both Mr Henwood and Dorothy Simmons of the interest of Father Simmons, but also of the risk that the Property may be subject to a trust. He asserted that, on one view of the facts, Mr Henwood and Dorothy Simmons are subject to an obligation as constructive trustees. That assertion, however, appears to be no more than the repetition of the assertion made in the statement of claim. 69Counsel for Father Simmons then asserted that there was a real issue about the nature and terms of the sale by Mr Henwood to Dorothy Simmons, which he said happened remarkably quickly. He asserted that, as at the time when the Commissioner sold the Property to Mr Henwood, an arrangement was clearly in place that part of the Property would then be transferred to Dorothy Simmons. Counsel asserted that, since the transfer to Dorothy Simmons took place only two weeks before the Court of Appeal judgment, "[c]learly they were concerned to rush ahead to try and settle the matter themselves outside of curial interest or hopefully they thought outside of curial investigation". That assertion does not appear in the statement of claim or the particulars. 70No further submissions were advanced on behalf of Father Simmons concerning the form of the statement of claim and the pleading of fraud. In particular, no suggestion was made by counsel for Father Simmons that there was any desire to reformulate the claims against Mr Henwood and Dorothy Simmons in order to overcome the effect of s 42 of the Real Property Act. 71That is so notwithstanding that, after dealing briefly with the question of a defence under the Limitation Act 1969, the primary judge observed that Father Simmons had not pleaded fraud or deceit. His Honour said that, as against Mr Henwood, the cause of action was that he had notice of an unregistered interest and knew that there was a risk that Father Simmons had a subsisting interest. His Honour then referred to the allegation in the statement of claim against the Commissioner of breach of trust and breach of fiduciary duty, and observed that the claim against Mr Henwood, whatever it was, was, in effect, a claim under the first limb of Barnes v Addy (1874) LR 9 Ch App 244. That observation was made in the context of the Limitation Act and the need for any defence based on the Limitation Act to be properly particularised. It is not entirely clear to what extent it was a recognition of an allegation in the particulars that might be an answer to s 42 of the Real Property Act. 72Counsel for Mr Henwood was then called on. His Honour said that there were three possibilities. The first was that the applications for summary dismissal might fail. The second possibility was that the applications might succeed and his Honour not give leave to Father Simmons to replead. The third possibility was that the applications might succeed and Father Simmons be given leave to replead, if he could, depending upon what his Honour ultimately concluded. His Honour said that that depended on whether Mr Henwood and Dorothy Simmons were able to persuade him to terminate Father Simmons' case now and, if so, on what basis. 73The possibility of repleading was not taken up when counsel for Father Simmons again addressed his Honour and drew his Honour's attention to several decisions said to give rise to uncertainty about the scope of the fraud exception in s 42 of the Real Property Act. Counsel submitted that the Court should not resolve that uncertainty in an application for summary dismissal. 74The primary judge then asked counsel for Father Simmons whether he submitted that fraud had been pleaded. The response was that it had been pleaded. Counsel for Father Simmons also accepted that he had to plead fraud against Mr Henwood and Dorothy Simmons, but said that what had been pleaded was sufficient to constitute fraud. Counsel for Father Simmons did not dissent from the proposition advanced by his Honour that the only thing that his Honour had to do was to determine whether what had been pleaded was sufficient to constitute fraud. Counsel asserted that the pleading, together with the particulars of the involvement and participation in the actual transaction, were enough to constitute an allegation of fraud.

Consequence of the Court of Appeal's Orders 75Mr Henwood contended that the proceeding is an abuse of process because it attempts to litigate or re-litigate the central issue decided in the Earlier Proceeding. He points to the orders substituted by the Court of Appeal to the effect that Father Simmons was jointly entitled to the proceeds of the sale of the Property. He contends that those orders expressly upheld the validity of the sale of the Property by the Commissioner to Mr Henwood. 76Similarly, Dorothy Simmons contends that the stance of Father Simmons ignored the form and the basis of the relief granted by the Court of Appeal. She contends that the effect of the varied orders of the Court of Appeal was that Father Simmons had no interest in the Property and that his interest was now in the proceeds of the sale. 77Those contentions clearly led the primary judge into error in his Honour's analysis of the matter. It is important to start with the proposition that neither Mr Henwood nor Dorothy Simmons was a party to the proceeding in the Court of Appeal. While that appeal arose out of a proceeding commenced by Dorothy Simmons, she had ceased to be a party to it. Her claims had been disposed of. Although she was originally a cross-defendant to Father Simmons' cross-claim, she ceased to be a party to that cross-claim before the commencement of the trial. Thus, the proceeding before Windeyer J, and in the Court of Appeal, was solely a proceeding as between Father Simmons and Agnes Simmons. 78It follows that no estoppel can be raised by the Respondents, either on the basis of a res judicata or an issue estoppel. There is also an extension of the principle of estoppel, to the effect that a party may be prohibited from raising an issue in a subsequent proceeding that had not been resolved in an earlier proceeding between the same parties, but which it was unreasonable for the party not to have raised in the earlier proceeding (Henderson v Henderson (1843) 3 Hare 100; Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589). 79An estoppel is a substantive answer to a claim as a matter of law. If an estoppel is clearly available as a defence, it may be an abuse of process to attempt to re-litigate an issue that has already been resolved by earlier litigation between the same parties in the same interests and that one of the parties is estopped from asserting or denying. That is not the present case. 80The lis that was resolved in the Court of Appeal was a dispute as between Father Simmons and his mother, Agnes Simmons, as to whether Father Simmons had, as against his mother, acquired an interest in the Property. The Court of Appeal concluded that he had. In those circumstances, if the Property was still owned by Agnes Simmons, the appropriate relief was the relief that was originally granted by the Court of Appeal. However, once the Property had been alienated by Agnes Simmons, by the actions of the Commissioner, that relief was futile. Of course, it would have been open to Father Simmons to move the Court of Appeal for interlocutory relief pending the hearing of the appeal. He did not do so. 81A proceeding may nevertheless be an abuse of process, even though no estoppel can be raised. The administration of justice can be brought into disrepute if a party, notwithstanding the unavailability of doctrines of res judicata and issue estoppel, were to attempt to re-litigate an issue that had been resolved against that party in an earlier proceeding, by changing the form of a subsequent proceeding but making the same allegation. Further, it may be an abuse of process for a party to advance, in a later proceeding, a contention that is inconsistent with a contention previously advanced by that party in a different proceeding (see Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198). Whether there is an abuse of process in any particular case will involve an analysis of all of the circumstances. For example, it may be that fresh or different evidence is available in the second proceeding, such that, if the doctrines of issue estoppel and res judicata are not available, it is fair and just that the party might make an inconsistent claim in the subsequent proceeding against different parties. 82However, there is no inconsistency between the stance that Father Simmons seeks to take in the proceeding as against Mr Henwood and Dorothy Simmons and the orders made by the Court of Appeal. The variation in the orders was not inconsistent with the determination that Father Simmons had an interest in the Property. It was designed to ensure that the relief granted by the Court of Appeal had utility as between the parties to the dispute, being Father Simmons and his mother. 83There is nothing inconsistent in Father Simmons making a claim against Mr Henwood and Dorothy Simmons, assuming such a claim is not precluded by s 42 of the Real Property Act, by asserting that they acquired their respective interests in the Property subject to his prior interest under the arrangements that he made with his mother. Naturally, the relief that might be granted, if he were to be successful, would need to be moulded to recognise any benefit that he may have received as a consequence of the orders of the Court of Appeal. 84For example, account would have to be taken of the consideration paid by Mr Henwood and Dorothy Simmons. Further, the Property was subject to a mortgage to secure borrowings by Agnes Simmons. Whether or not Father Simmons acquired his interest in the Property subject to that burden, or whether he would have been entitled to have the whole of that burden charged on the interest of Agnes Simmons, has not been considered. That, however, is a different question from whether he can pursue whatever interest he had in the Property against Mr Henwood and Dorothy Simmons. His Honour erred in concluding that the orders of the Court of Appeal constituted a bar to his prosecuting those claims.

Section 42 of the Real Property Act 85In the absence of a properly particularised allegation of fraud as an answer to s 42 of the Real Property Act, the claim by Father Simmons against Mr Henwood and Dorothy Simmons could not succeed. So much appears to have been accepted by counsel for Father Simmons during the hearing of the summary dismissal application. Counsel, however, contended that there was an allegation of fraud in the statement of claim. That contention is, as his Honour said, somewhat surprising and cannot be sustained. Even with the particulars furnished, there is simply no allegation of fraud made in the statement of claim. 86Merely to take a transfer with notice, or even actual knowledge, that its registration will defeat an existing unregistered interest is not, without more, fraud. Fraud within s 42 of the Real Property Act involves some moral turpitude. Fraudulent misrepresentation in obtaining a transfer or in securing registration would be an answer to s 42. Similarly, an honest representation that induced the execution of a transfer, and was subsequently repudiated for the purposes of defeating the prior interest, may also be an answer to s 42, if the repudiation had the object of destroying the unregistered interest notwithstanding that the preservation of that interest was the foundation or assumption underlying the execution of the transfer (Mills v Stokman [1967] HCA 15; (1967) 116 CLR 61 at 78 and Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 605 at 614 - 615). 87On the basis of the pleadings as they stood before the primary judge, the claim by Father Simmons was bound to be defeated by s 42 of the Real Property Act. The allegations made in the statement of claim, as particularised, do no more than assert that Mr Henwood and Dorothy Simmons took their respective interests in the Property from the Commissioner and from Mr Henwood with knowledge of the assertion that had been made by Father Simmons that he had an interest in the Property by reason of the alleged agreement with Agnes Simmons. Of course, at the time when the respective agreements by which they acquired their interests were entered into, Windeyer J had concluded that Father Simmons had no enforceable interest in the Property. Acting on the basis of the final order of a superior court is hardly fraud under the Real Property Act. There was no error in concluding that, on the pleading before the primary judge, the claim against Mr Henwood and Dorothy Simmons was doomed to fail. The prosecution of the claim, therefore, was an abuse of process.

Relief 88In the light of the above, it must be concluded that the primary judge erred in so far as his Honour based the dismissal of the proceeding as against Mr Henwood and Dorothy Simmons on the orders of the Court of Appeal in the Earlier Proceeding. However, his Honour made no error in his treatment of s 42 of the Real Property Act in relation to the statement of claim. The question is whether his Honour's error in relation to the consequences of the Earlier Proceeding infects his decision to dismiss the current proceeding against Mr Henwood and Dorothy Simmons. 89The reasons of the primary judge dealt with the two bases for dismissal under the heading "Why the Plaintiff Cannot Succeed". Having dealt with the consequences of the Court of Appeal orders and s 42 of the Real Property Act, his Honour made the observation that counsel for Father Simmons proffered no analysis as to how "these hurdles might be overcome, whether by amendment or otherwise". 90It is clear that counsel for Father Simmons made no application for leave to file an amended statement of claim or to file a reply during the course of the hearing. In that regard, the exchanges between counsel for Father Simmons and the primary judge are significant. In response to questioning by his Honour, counsel for Father Simmons accepted that he had to plead fraud as against Mr Henwood and Dorothy Simmons and said that he had done so. He confirmed that what was pleaded was sufficient to constitute fraud. Counsel accepted that the only thing that his Honour had to determine was whether what had been pleaded was sufficient to constitute fraud. 91Counsel contended that the words of the pleading, fleshed out by the letters of particulars, that say that Mr Henwood and Dorothy Simmons knew of the claim by Father Simmons and of the risk attached to the claim succeeding was enough to constitute fraud. Counsel pointed to the allegation of the knowing receipt of the Property and knowing participation and involvement in the breach of duty on the part of the Commissioner. Counsel asserted that there was no doubt that Mr Henwood and Dorothy Simmons each understood that there was an allegation of fraud for the purpose of s 42 of the Real Property Act, because they had pleaded the contrary in their defences. 92No application for leave to replead was made after the primary judge had published his reasons for his conclusion. Of course, in the light of his Honour's conclusion as to the consequences of the Court of Appeal's orders in the Earlier Proceeding, there was probably no utility in doing so after his Honour had published his reasons. 93In any event, it is clear that the primary judge was not asked to give consideration to the question of whether, assuming the orders of the Court of Appeal in the Earlier Proceeding did not constitute a hurdle, some amendment could be made to the pleadings that would amount to an allegation of fraud, as counsel for Father Simmons asserted was already contained in the statement of claim. 94It is clear that the principal reason for the order made by the primary judge was his Honour's conclusion, which I consider to be erroneous, that the orders of the Court of Appeal in the Earlier Proceeding dictated the outcome of the summary dismissal application. It is not entirely certain that, had his Honour reached a different conclusion concerning the consequences of the Earlier Proceeding, his Honour would not have entertained an application for leave to replead to raise fraud under the Real Property Act. The thrust of the argument before his Honour was not concerned with pleading or whether an amendment could be made that might raise facts that, if proved, were capable of constituting fraud within the meaning of the Real Property Act. 95Ordinarily, a party should not be denied the opportunity to put his case before the Court in the ordinary way, after taking advantage of available interlocutory processes. Before a party will be deprived of that opportunity, the court must have a high degree of certainty about the ultimate outcome of the proceeding, if it were to be allowed to go to trial in the ordinary way (see Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 575 - 576 [57]). The power to order summary dismissal should only be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried (see Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99). 96In the circumstances, I consider that it would be appropriate for Father Simmons to be given the opportunity of making an application to the primary judge for leave to amend, or to file a reply, to plead fraud within the meaning of s 42 of the Real Property Act. It would be entirely a matter for his Honour to determine whether any such indulgence should be granted. For example, whether such an application succeeded might depend upon a satisfactory explanation being advanced as to why the proposed pleading was not advanced earlier. Further, it may be that if leave were granted, it would be on appropriate terms as to the costs that have been thrown away, particularly in the light of the assertion made to the primary judge that fraud had been alleged in the statement of claim as particularised. They would be matters for the primary judge.

Conclusion 97I would grant leave to appeal, uphold the appeal and set aside the orders for dismissal of the proceeding as against Mr Henwood and Dorothy Simmons. The matter should be remitted to the primary judge for consideration of any application that Father Simmons wishes to make, either to file an amended statement of claim, or to file a reply to the defences filed on behalf of Mr Henwood and Dorothy Simmons, raising fraud within the meaning of the Real Property Act. The costs of the appeal should be the parties' costs of the proceeding. 98The costs of the motions should be reserved for the primary judge, for his Honour to determine after hearing and determining any application by Father Simmons for leave to amend or to file a reply. If no application is made, or if any application is unsuccessful, it would be expected that his Honour would order that the proceeding as against Mr Henwood and Dorothy Simmons be dismissed with costs. 99GLEESON JA: I agree with the reasons of Emmett JA and the orders his Honour proposes.

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