Simpson v RBM and Ors

Beach Petroleum NL v Abbott Tout Russell Kennedy (1997) 26 ACSR 114 Bonner v Fauna Productions Pty Limited [2009] NSWSC 604 Breen v Williams (1996) 186 CLR 71 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 Chapman v Luminis Pty Limited [2002] FCA 496 General Steel Industries Inc v Commissioner of Railways (NSW) (1965) 112 CLR 125 CASES CITED : Griffiths v Kerkemeyer (1977) 139 CLR 161 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Johnson v Buttress (1936) 56 CLR 113 Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 Philips Electronics Australia Pty Limited v Matthews (2002) 54 NSWLR 598 Pilmer v Duke Group Limited & Ors (2001) 207 CLR 165 Winnote Pty Limited (In Liq) & Anor v Page [2006] NSWCA 287; (2006) 68 NSWLR 531

Calandre Julia Theresa Simpson - Plaintiff RBM - First Defendant PARTIES : FWH - Second Defendant Perpetual Trustee Company Limited - Fifth Defendant JH - Sixth Defendant TH - Seventh Defendant

Mr DJ Higgs SC/Mr CJ Bevan - Plaintiff COUNSEL : Ms CE Adamson SC/Mr D Roche - First and Second Defendants Mr R Dubler SC/Mr T Maltz - Fifth Defendant Mr TM Faulkner - Sixth and Seventh Defendants

TL Lawyers - Plaintiff SOLICITORS : Yeldham Price O'Brien Lusk - First and Second Defendants TressCox Lawyers - Fifth Defendant Wotton Kearney - Sixth and Seventh Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/00289147 - Calandre Julia Theresa SIMPSON v RBM and Ors (No 2)

Nature of proceedings The first and second defendants, sixth and seventh defendants and fifth defendants (the applicant defendants) have applied by way of motions for certain paragraphs of the plaintiff's draft second further amended statement of claim (2FASC) to be struck out. The first and second defendants have also applied for security for costs. The first and second defendants and sixth and seventh defendants are solicitors who previously acted on behalf of the plaintiff. The fifth defendant (Perpetual) is a trustee company which is one of two trustees of the Calandre Simpson Trust (CST). 2 While the above generally describes the way in which this matter was conducted, it is necessary to set out the state of the pleadings in somewhat more detail. An amended statement of claim was filed by the plaintiff in early 2009. The applicant defendants applied to have various parts of that amended statement of claim struck out. Before those motions were heard, negotiations took place and the 2FASC was prepared and circulated amongst the defendants. The applicant defendants still regarded parts of that document as objectionable. 3 Accordingly, although the Court has not granted leave to the plaintiff to file the 2FASC, the parties agreed that it would be more convenient to assume that such leave had been granted, to rely upon the strike out motions previously filed and to deal with the matter as a series of strike out applications rather than an application by the plaintiff to file the 2FASC. 4 These reasons for judgment should be read with those of 6 August 2008. Factual background 5 The plaintiff was born on 5 July 1979 and is now 30 years of age. From birth she has suffered from spastic quadriplegic cerebral palsy. The effect of this condition is that the plaintiff is severely disabled, lacks mobility and requires 24 hour care 7 days per week. She is unable to speak. Her only means of communication is by the use of a communication board accessing words, phrases and letters manually or by a laser light pointer mounted on the peak of a cap. Such communication requires considerable time, focus and concentration on the part of the plaintiff and the person with whom she is communicating. The plaintiff is not intellectually impaired and has an intelligence quotient near normal. 6 On 3 April 1987 the plaintiff commenced proceedings against the obstetrician who delivered her and the hospital where she was born. Her father was her tutor. Judgment at first instance was handed down on 21 November 2001 in the amount of $14,202,000. The defendants appealed and were successful. On 7 April 2003 the Court of Appeal set aside the judgment and entered judgment in favour of the plaintiff in the sum of $10,998,692. No amount was allowed, either at first instance or on appeal, for funds management. 7 On 7 March 2002 the CST deed was signed with her mother and Perpetual as trustees. On 8 March 2002 the trustees received the amount of $10,166,889. That amount was subsequently reduced to reflect the Court of Appeal judgment. As can be seen approximately $4 million was deducted from the judgment before payment to the trust. This comprised approximately $2.5 million paid to the first and second defendants as legal costs and approximately $1.5 million paid to her parents. 8 The plaintiff alleges that the first and second defendants and the sixth and seventh defendants took their instructions from her parents and not from her. She alleges that they were negligent and in breach of the fiduciary duties which they owed to her in allowing actions to be taken which were to her detriment. The plaintiff says that the first and second defendants and the sixth and seventh defendants were aware that her parents were exerting undue influence over her. There are allegations of a conflict of interest in the solicitors acting for both the plaintiff and her parents. She alleges that the first and second defendants deducted their legal costs from the judgment without telling her that she was entitled to have those costs assessed. 9 As against her parents (the third and fourth defendants) the plaintiff alleges that they were in a relationship of influence over her and because of her condition, she was largely dependent upon them. She alleges that they improperly used that influence to persuade her to make payments of money which benefited them and not her. Those payments included the damages awarded for past care pursuant to the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161 together with interest on that amount. 10 As against Perpetual, the plaintiff alleges that it knew or ought to have known that she was under the actual or presumed undue influence of her parents. She alleges that notwithstanding that knowledge, Perpetual provided advice which facilitated the breaches alleged against her parents and the first and second defendants. The plaintiff brings a claim in negligence, undue influence and for breach of fiduciary duty against Perpetual in respect of that conduct both before and after it became a trustee. 11 The plaintiff seeks a declaration that the CST was not properly created and that moneys, the subject of the trust, should be transferred directly to her.

Strike out application by first and second defendants 12 In oral submissions and in the written submissions of 2 October 2009 the first and second defendants submitted that the 2FASC failed to differentiate their respective roles. They submitted that it was common ground that Mr H had had no direct dealings with the plaintiff, her parents or Perpetual. At the relevant time, he had been the principal of the firm and Mr M had worked as his employed solicitor. In those circumstances, they submitted that it was wrong to allege in the pleadings that Mr H played an active part, equal to that of Mr M. 13 The plaintiff submitted that this was not her intention. The basis for the liability of Mr H was threefold: vicarious liability as the employer of Mr M, liability as a principal in that Mr M was his agent and personal liability only insofar as he had failed to properly supervise the activities of Mr M. 14 The Court was taken to those parts of the 2FASC where allegations were made against Mr H. It was clear from the form of the pleading that he was alleged to have been directly and personally involved with the plaintiff, her parents and Perpetual. As was frankly acknowledged by the plaintiff, this did not reflect the basis on which proceedings were being pursued against him. 15 Clearly these paragraphs of the 2FASC require amendment to correctly plead the plaintiff's case against Mr H. This complaint by the first and second defendants has been made out. The plaintiff, however, will be granted leave to amend the 2FASC to enable the basis on which liability is alleged against Mr H to be correctly set out. 16 The second matter raised by the first and second defendants is that the element of intention which is necessary for a breach of fiduciary duty has not been properly pleaded. They accepted that the 2FASC contains averments as to intention on their part but submitted that the basis for this allegation had not been properly particularised. 17 I do not accept this submission. There are two problems with it. The first is that in substance it goes beyond a strike out application and implicitly raises factual issues (General Steel Industries Inc v Commissioner of Railways (NSW) (1965) 112 CLR 125). 18 The second is that it does not allow for intention to be established or inferred from actions and knowledge. In this case the knowledge and actions alleged were: the plaintiff's vulnerability, the position of influence of her parents and the disbursement of the plaintiff's moneys without appropriate advice. 19 The distinction which the cases seem to draw is between deliberate acts and carelessness. The following observations by Rolfe J in Beach Petroleum NL v Abbott Tout Russell Kennedy (1997) 26 ACSR 114 at 370 are instructive. "It seems to me that one must analyse the facts of each case as it arises. In relation to solicitors the fiduciary duty does arise, in the absence of informed consent, when a solicitor has a financial interest in a transaction into which the client is entering … The breach arises from the beginning, thus giving rise to the remedy … Second, there is a breach of fiduciary duty when a solicitor is acting for several parties in a transaction and a conflict arises between the parties. The breach does not, as I understand it, arise until there is a conflict but, once the conflict occurs the ability of a solicitor to discharge his or her obligations to both parties becomes, for all relevant purposes, very difficult and, in the absence of informed consent, impossible. Inherent in that formulation is that there is a conflict between the parties of which the solicitor is aware. That is because there is a requirement that breach of fiduciary duty requires an element of intent. Accordingly, so it seems to me, if the solicitor is unaware of the existence of the conflict there cannot be a breach of a fiduciary duty. …" 20 Whether, as a matter of fact, a failure to meet these obligations will be made out is not a matter which concerns the Court on this application. It is sufficient that I have formed the opinion that the way in which this aspect of the claim has been pleaded is adequate and that the issue of breach of fiduciary duty on the part of the first and second defendants has been properly raised. 21 In reaching that opinion I am mindful of the requirement under the Uniform Civil Procedure Rules (UCPR) that issues relating to a state of mind should be pleaded. In this case, however, the issue has been clearly raised and the mental component will ultimately be decided by way of inferences to be drawn from such knowledge and conduct as is established at the hearing. Because of the nature of the knowledge and conduct alleged, nothing further is required. 22 The next point related to that part of the plaintiff's claim which asserts that they were in breach of their fiduciary duty when they took their costs out of the plaintiff's judgment moneys. The first and second defendants submit that nowhere in the 2FASC is there an allegation that their legal costs were unreasonable. When they sought particulars of this part of the claim, they were told that there was no allegation that their legal costs were unreasonable. 23 The plaintiff accepted that this response to the request for particulars was incorrect. This part of her claim is based on an allegation that she was not told by Mr M that she had a right to have the legal costs assessed before she was obliged to pay them. Accordingly, her position is that she does not know whether the legal costs were reasonable or not because she was not given the opportunity to find out. Although the plaintiff's position has now been clarified in her written and oral submissions, the clarification of this aspect of her claim needs to be formalised by the provision of updated particulars. These need not form part of the statement of claim. 24 On that issue also, further particulars of intent are not required. If the allegation is made out, the necessary intent can be inferred from the conduct. It is clearly arguable that a solicitor, who has his or her costs paid without scrutiny where there is a legislative provision for assessment and does not tell the client of that provision, has intentionally gained a real benefit. 25 Similarly, with the allegations of breach of fiduciary duty arising from the alleged conflict of interest between the plaintiff and the parents, intent has been sufficiently pleaded. Such intent can be established at trial by the conduct and the surrounding circumstances which have already been particularised in the statement of claim. 26 In relation to paragraph 141OD, I do not accept that any more detail needs to be provided as to intention or as to the mental element required to establish a breach of fiduciary duty. I do agree that the first and second defendants are entitled to appropriate particulars as to how the conduct referred to involved "preferring his own/Turtons' interests". I note that such particulars have been provided orally in submissions but the first and second defendants are entitled to have such particulars provided in a more formal manner. It is not necessary that those particulars form part of the statement of claim. 27 In relation to the specific complaints made by the first and second defendants in their written submissions of 17 July 2009, I consider that these have been adequately answered by the plaintiff in her submissions in response of 19 August 2009 and her summary of those responses in her submissions of 26 February 2010. When the 2FASC is read against the background of those submissions, the way in which the claim against them is particularised and will be presented, is sufficiently clear. That having been said, written submissions in response to a strike out application are an unsatisfactory way of providing particulars. In due course I propose to direct that the plaintiff treat the defendants' submissions of 17 July 2009 as a request for particulars (the earlier request of 14 July 2009 adds nothing to the original request) and that a formal reply be made to the specific issues raised in accordance with the plaintiff's submissions in reply of 19 August 2009.

Strike out application by sixth and seventh defendants 28 In the preamble to their submissions the sixth and seventh defendants reminded the Court that Mr M had only joined their firm on 9 December 2002, which was the date on which they were retained to act on behalf of the plaintiff. By that time the judgment moneys had been paid, the appeal proceedings had been argued but judgment had not been handed down. The CST had been established and a payment of approximately $1.496 million had been made to the plaintiff's parents. 29 The sixth and seventh defendants submitted that despite that factual background, the 2FASC purports to fix them with responsibility for conduct and losses suffered by the plaintiff prior to the date of their retainer. They submitted that the pleading fails to differentiate the case against them from the case against the other solicitors in the proceedings. They submitted that this failure extended to the terms of the retainer, the duties and alleged breaches and the loss said to flow from those breaches. They submit that the only loss which occurred (which is not admitted) during the period of their retainer was the single discrete payment of $320,000 of interest to the plaintiff's parents. 30 The sixth and seventh defendants drew the Court's attention to a number of paragraphs in the 2FASC where allegations were made and particulars provided by reference to other paragraphs which themselves referred to other paragraphs. By taking the Court in detail through some of these "rolled up" paragraphs, the sixth and seventh defendants were able to demonstrate that a number of the allegations made and particulars provided were clearly inappropriate to their period of involvement with the plaintiff. 31 The problem is perhaps best illustrated by using the words of counsel for the sixth and seventh defendants:

"Then paragraph 145AE contains probably the most important allegations that are made against us, having regard to our coming on the scene only lately, and these are the allegations of the terms of our retainer. Your Honour will see that it does it by way of saying that our terms are identical to the terms pleaded in some other paragraphs of the proposed pleading. The short point is, if your Honour goes to these other paragraphs and looks at them and looks at the other paragraphs cross-referenced in those, your Honour will go on a tour of the whole document and at the end have no idea what are the terms of our retainer." (T.25.18-.26) 32 Having accepted counsel's invitation, I can only say that his criticisms of this paragraph are valid. The same criticisms apply to a number of other paragraphs relating to the sixth and seventh defendants, which use the same technique. Quite clearly these paragraphs require re-pleading. 33 Paragraph 145AF of the 2FASC seeks to incorporate Pt 14 of the schedule to the document. Part 14 is headed "Material Facts Supporting the Allegations of the HHP Retainer Breaches Committed by Mr M as an Employee". It sets out twenty-four freestanding allegations which are quite general. Most are not particularised as to time or place. There are references to breaches of the Solicitors' Rules without particularisation or detail. Most of Pt 14 in the schedule of the 2FASC requires redrafting. 34 Paragraph 145AC is criticised because it appears to assert a continuing obligation on the part of Mr M to detect and remedy his own previous breaches and to attribute his failure to do so to the sixth and seventh defendants. If that is the intention of paragraph 145AC (an interpretation which is clearly open) that proposition is bad in law (Winnote Pty Limited (In Liq) & Anor v Page [2006] NSWCA 287; (2006) 68 NSWLR 531). I agree that the effect of paragraph 145AC needs to be clarified. 35 For the above reasons I find that the following paragraphs of the 2FASC insofar as they relate to the sixth and seventh defendants need to be repleaded: 6A, 145AB, 145AC, 145AE, 145AF (including Part 14 of the Schedule), 145AI (including Part 15 of the Schedule), 145AN, 145AO, 145AP, 145AQ, 145AR (including Part 16 of the Schedule), 145AU, 145AV, 145AW (including Part 17 of the Schedule), 150L (including Part 21 of the Schedule).

Strike out application on behalf of Perpetual 36 Perpetual raised four categories of complaint. The first category was described as an "objection as to form". Perpetual approached that category by drawing the Court's attention to particular paragraphs in the 2FASC which it said clearly illustrated the complaint which it made. The particular paragraphs were 107AK, 107AR and 107ATC. 37 The basis for the complaint was that there was no attempt in the pleading to differentiate matters which were peculiar to Perpetual and matters which were not. The particular paragraphs were rolled up pleadings which referred to all of the defendants and made the same allegations against each of them. Perpetual submitted that if these allegations were in fact being made against Perpetual, the statement of claim should set out detailed particulars of the conduct relied upon rather than setting out a series of conclusionary allegations. 38 Perpetual submitted that paragraph 107AR provided a good example of the latter defect. Although that paragraph was meant to set out the basis for the fiduciary relationship which the plaintiff alleged existed between Perpetual and her at the specified time, it did not set out the material facts upon which that allegation was based. What it did was to make a number of sweeping allegations with all of the defendants brought together. Perpetual submitted that it was entitled to know with specificity what was being alleged against it. 39 In her response of 26 February 2010, the plaintiff accepted the force of these criticisms and responded that she would provide particulars of the allegations made against Perpetual in a further revised statement of claim. In that regard it seems to me that what is needed are not merely particulars but a clear statement of the material facts upon which the allegation is based. Particulars should then be provided in relation to those material facts. The re-pleading should apply not only to those paragraphs specifically relied upon by Perpetual in its oral submissions. The re-pleading should extend to the paragraphs specifically referred to in its notice of motion filed 29 June 2009 as amended in its oral submissions: paragraphs 107AL-115, 116-120, 126A-134FB, 135A-135I. 40 The second category of complaint by Perpetual was the failure of the 2FASC to disclose reasonable causes of action against it. 41 Perpetual submitted that the first example was the reference in paragraph 19 of the 2FASC to what was described as the "trust creation agreement". Perpetual submitted that "unlike the solicitors before the formation of the trust there was no retainer of Perpetual and no obligation on it to act". It submitted that "the trust creation agreement" was no more than an agreement to agree and was not therefore a retainer to advise or act for the plaintiff. The Court was taken to taken to sub-paragraphs (d), (e) and (k) which set out a number of important matters relating to the trust upon which agreement had not been reached, e.g. the precise terms of the trust deed, the identity of the trustees, the identity of the beneficiaries and the amount of remuneration for the trustees. Perpetual submitted that many of the plaintiff's claims against it depended upon the existence of the "trust creation agreement". 42 In support of that submission, Perpetual relied upon Bonner v Fauna Productions Pty Limited [2009] NSWSC 604 (Gzell J) where, it submitted, a similar pleading which raised an "agreement to agree" was struck down. Perpetual relied upon the following statement of principle from that case: "[25] The Residuals Agreement is, at best, an agreement to agree and agreements to agree are unenforceable. In Booker Industries Pty Limited v Wilson Parking (Qld) Pty Limited (1982) 149 CLR 600 at 604, Gibbs CJ, Murphy and Wilson JJ said: "It is established by authority, both ancient and modern, that the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future" [26] That passage was cited with approval by the Court of Appeal in Australis Media Holdings Pty Limited v Telstra Corporation Ltd (1998) 43 NSWLR 104 at 126-127." 43 Perpetual submitted that the whole of paragraph 19 should be struck out as not being capable of establishing an agreement of the kind pleaded. 44 The plaintiff submitted that Perpetual's submissions were misconceived in that it had incorrectly characterised the agreement which was being relied upon. It was not an agreement to create another agreement such as was struck out in Fauna Productions. Rather it was an agreement which was akin to a retainer to advise. It was an agreement made with the agents of the plaintiff, the first and second defendants. The plaintiff submitted that such an agreement of its nature involved some uncertainty and referred by analogy to a solicitor's retainer to advise which might not be entirely clear at the beginning as to what work was to be carried out, but which traditionally had been upheld as a valid contract. 45 The plaintiff submitted that the retainer was not to enter into another agreement, the terms of which were uncertain, but to enter into a trust. The plaintiff submitted that a trust was not an agreement, but rather a relationship which related to the holding of an identified interest in property which might have specified obligations attached to it or obligations which arose by operation of law. The plaintiff submitted that all that was necessary to establish the relationship of trustee and beneficiary was "to prove that the legal title was in the plaintiff and the equitable title in the defendant". She submitted that what was critical in relation to this contract was the intention to create an express trust. 46 The plaintiff submitted that in order to have an agreement to create a trust which was enforceable as a contract, there must be agreement as to four matters: the trustee, trust property, trust beneficiary and trust obligation. She submitted that once those four elements are found there is a valid trust and an intention to create such a trust. In this case those conditions were satisfied. She submitted that she was to be the sole beneficiary, Perpetual was to be the trustee, the trust property was to be the entire proceeds of the plaintiff's personal injury proceedings then pending in the court, and the trust obligation was to hold that fund of money for the sole benefit of the plaintiff for the remainder of her life. 47 There is considerable force in the submissions of Perpetual. In particular, the terms of the "trust creation agreement" as pleaded in paragraph 19, are somewhat different to the submissions put forward by the plaintiff in support. Nevertheless, the difficulty with Perpetual's submissions on a strike out application is that in the particular circumstances of this case, factual findings will determine the existence of any retainer and if so its precise terms (General Steel Industries Inc v Commissioner of Railways (NSW)(1965) 112 CLR 125). 48 It follows that I am not prepared to strike out the plaintiff's allegation that there was a retainer entered into by Perpetual with agents of the plaintiff even though there was at that time no direct contact between Perpetual and the plaintiff. Having said that, I agree with Perpetual that the way in which the retainer has been pleaded obfuscates rather than clarifies the nature of the retainer relied upon. The layers of particulars obscure the essential material facts which are relied upon to establish the retainer. Whilst I decline to strike out paragraph 19, I will direct that it be re-pleaded to set out the material facts giving rise to the retainer and only such particulars as are necessary to explain or clarify those material facts. 49 In relation to the second category of complaint, Perpetual next submitted that for the period before the CST commenced on 7 March 2002, the factual allegations in the statement of claim did not give rise to the three causes of action relied upon against it, i.e. breach of fiduciary duty, the exercise of undue influence and breach of duty of care. 50 As to the existence of a fiduciary relationship, Perpetual submitted that the material facts alleged went no further than a statement that Perpetual was aware that the difference between the judgment sum awarded at first instance and the moneys paid to the CST in March 2002, comprised the payments to Mr M for solicitor's costs and to the plaintiff's parents for Griffiths v Kerkemeyer amounts and interest. Perpetual submitted that if the Court accepted its submissions as to the trust creation agreement, those matters did not provide a proper foundation for a cause of action which asserted that Perpetual was the plaintiff's fiduciary. 51 By reference to Breen v Williams (1996) 186 CLR 71 Perpetual submitted that it was never in a position to exercise discretionary powers which affected the plaintiff unilaterally in the period leading up to the creation of the CST. Perpetual submitted that the material facts went no further than describing a discretion or power which Perpetual had to decline to enter into the trust as trustee. Perpetual submitted that that circumstance was not illustrative of a true fiduciary power. In reality Perpetual had no power to act unilaterally with respect to the plaintiff until after the CST came into existence. 52 Perpetual acknowledged that the existence of a fiduciary duty between it and the plaintiff prior to the creation of the CST was put on an alternative basis. That was to be found in paragraphs 107AM and 107AN. This involved an assertion of a relationship of ascendency on the part of Perpetual and dependency on the part of the plaintiff in which Perpetual acted in the interests of another and the plaintiff did not have the ability to act in her own interests. 53 Perpetual submitted that this kind of fiduciary duty was considered by the High Court in Pilmer v Duke Group Limited & Ors (2001) 207 CLR 165 at [70] - [75]. Pilmer restated the well known statement of Mason J in Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 97: "The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to a detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position … It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed." 54 Perpetual referred to the facts of Pilmer where a financial adviser who gave advice about share valuations was held not to be a fiduciary: "[75] The trial judge added that there was no other reason to suggest the existence of a fiduciary relationship. In particular, the appellants were not agents Kia Ora, there was no relationship of ascendancy or influence by the appellant over Kia Ora, nor one of dependence or trust on the part of Kia Ora in the relevant sense. It was to be expected that Kia Ora relied upon the appellants to do their work competently and independently but they were not guiding or influencing Kia Ora in the sense discussed in the cases dealing with fiduciary relationships." 55 Perpetual submitted that most of the particulars in paragraphs 107AM and 107AN were irrelevant to the existence of a fiduciary relationship. When the irrelevant particulars were removed, the material facts relied upon by the plaintiff were that Perpetual provided draft trust deeds, engaged in negotiations over those drafts and that this took place with knowledge that Mr M was not going to provide all of the moneys, the subject of the judgment, to the CST and that the plaintiff was a vulnerable person. Perpetual submitted that these matters could not give rise to a fiduciary relationship between Perpetual and the plaintiff. 56 In response the plaintiff had the advantage that on a strike out application such as this, I was prepared to accept that it was arguable that there was a retainer entered into by Perpetual with agents of the plaintiff to provide advice and act on her behalf so as to be capable of being characterised as a "trust creation agreement". It was also not necessary that the content of the obligations imposed upon Perpetual and on the first and second defendants as solicitors be the same. 57 The plaintiff submitted that Perpetual's reliance upon Breen v Williams focused upon a proposition in the judgment of Gaudron and McHugh JJ which was not supported in the other judgments. This was the proposition that the circumstances which point towards the existence of a fiduciary relationship include "the scope for one party to unilaterally exercise a discretional power which may affect the rights or interests of another". She submitted that Gaudron and McHugh JJ accepted that the categories of fiduciary relationship were not closed and that the proposition which they propounded pointed towards but was not determinative of, the existence of a fiduciary relationship. 58 The plaintiff submitted that the critical feature of such a relationship was one person agreeing to act on behalf of another in respect of the exercise of a power that would affect the vulnerable person's interests in a practical sense. She submitted that Perpetual's conduct (particularly as pleaded at paragraph 59) was the exercise of a power to avoid loss which undid Perpetual's previous insistence on Court approval for approximately $4 million being paid out to the parents and the solicitors before the creation of the CST. The plaintiff submitted that Perpetual, by that conduct, intentionally preferred the interests of the parents and solicitors and their own interests over hers. This was against a background where the acknowledged purpose of the trust was to protect the plaintiff from exploitation. 59 The plaintiff submitted that this was an unusual case. Fiduciary relations were of many different types and often when they arose, the content of the duty was incapable of precise definition, although undue influence was often a prominent feature. As to whether Perpetual undertook to act on behalf of the plaintiff was a question of fact in each case which could not be defined other than in general terms. Matters relevant to determining whether such a relationship existed were the subject matter generally (not merely the express terms of any agreement) and the course of dealings between the parties. 60 In relation to the expression of opinion by Gaudron and McHugh JJ in Breen, the plaintiff submitted that the existence of a unilateral power or discretion was not the exclusive test of a fiduciary relationship arising, but was merely indicative of one of many sets of circumstances which can give rise to such a relationship. Even if it were the case (which the plaintiff disputed) that the power must be exercised unilaterally to become a foundation for a fiduciary duty, that did not mean that other powers could not give rise to a fiduciary relationship in this open class of such a relationship. 61 Relying upon Hospital Products, the plaintiff stressed the following features of the plaintiff's claim as being indicative of a fiduciary relationship:

(i) An inequality of bargaining power. In this regard the plaintiff's position vis a vis Perpetual was that of a disabled person totally reliant upon Mr M and her parents in her dealings with Perpetual, a large trustee company.

(ii) The existence of an undertaking by one party to perform a task or fulfil a duty in the interests of another. This encompassed Perpetual's duty to create an express trust for the plaintiff's sole benefit of the entire judgment moneys pursuant to the trust creation agreement and to advise thereon for the purpose of avoiding exploitation.

(iii) A dependency or vulnerability on the part of one party that causes that party to rely upon another. There was no issue as to the plaintiff's vulnerability. It was the plaintiff's case that she placed herself in Perpetual's hands from the time when Perpetual entered into the trust creation agreement.

(iv) An undertaking or agreement to act on behalf of a person in his or her interests in respect of their assets. In this case Perpetual undertook or agreed to act on behalf of the plaintiff or in her interests in respect of her money and how it would be held and spent. Her vulnerability was at the heart of the solicitors, her parents and Perpetual being engaged to advise upon and create the trust. 62 In relation to the trust creation agreement, the plaintiff relied upon the statement of principle by Gummow J in Breen at 132 - 135 where his Honour recognised contract as a basis for a fiduciary relationship. 63 The plaintiff submitted that the decision in Pilmer did not assist Perpetual. On the contrary, the citation of the statement of principle by Mason J at [70] encompassed the very factual situation which the plaintiff relied upon in her pleadings. The trust creation agreement was "an agreement [by Perpetual] to agree to act for or on behalf of the interests of" the plaintiff (to adopt the language of Mason J). This explained why her fiduciary duty case against Perpetual relied upon a contract. 64 The plaintiff rejected Perpetual's proposition that it was a mere bystander to what occurred, that it had no real "powers" in the necessary sense and that the only real active participants were Mr M and the plaintiff's parents. 65 In response the plaintiff put the following proposition. Under the trust creation agreement she was entitled to expect that Perpetual would take possession of the entire proceeds of her personal injury judgment and manage them in such a way that she would be protected from all claims on it by others, including those close to her such as carers. Perpetual had been chosen as the trustee of the proposed trust because it was a large, reputable trustee company experienced in managing such trusts. 66 The plaintiff submitted that she implicitly relied on Perpetual, once chosen, to establish an express trust over the whole of the judgment moneys for her sole benefit and to protect her from all claims on those moneys. 67 The plaintiff submitted that having concluded in late 2001/early 2002 that it was inappropriate for the foreshadowed payment of $4 million to be made to Mr M's firm and the plaintiff's parents without a court order approving these gratuitous payments, Perpetual had the power (and the proscriptive fiduciary duty) to refuse to accept an appointment to the proposed trust if those payments out were made. It had that power/duty to refuse to accept the appointment unless and until:

(i) It communicated to the plaintiff directly (instead of through Mr M on her behalf) its insistence on a Court order approving the payments out.

(ii) It ensured that the plaintiff obtained independent legal advice before she consented to Perpetual's establishment of a trust over only part of the judgment moneys.

(iii) It ensured that the plaintiff obtained independent legal advice as to the terms of the trust (as a result of which she became a mere discretionary beneficiary with no proprietary interest in the trust moneys).

(iv) It informed the plaintiff that the three persons who were parties to the trust creation agreement (other than itself) were making claims on the judgment moneys without Court approval having been obtained and that these persons had a conflict of interest insofar as the plaintiff was concerned.

(v) It had received written confirmation from an independent lawyer that the plaintiff was prepared to proceed to consent to the creation of the trust despite having been made aware of the above matters. 68 The plaintiff submitted that this power/duty of Perpetual was sufficient in the requisite sense to support the existence of a fiduciary relationship to which the plaintiff and Perpetual were parties. 69 Having already found that the plaintiff had pleaded an arguable case in relation to the trust creation agreement, it is easier to make the same finding in relation to the claim for breach of fiduciary duty against Perpetual in relation to the period before the commencement of the CST. While I accept that the plaintiff has made her task in that regard more difficult by the convoluted form of pleading and the provision of irrelevant particulars, the submissions which are summarised above are sufficient to establish an arguable basis for the existence of a fiduciary relationship between Perpetual and the plaintiff. The pleading as to breach of that duty has not been challenged. Accordingly, I decline to strike out paragraph 21 and its related paragraphs in the 2FASC. 70 Perpetual submitted that the pleading of undue influence (paragraphs 116 - 118 (which incorporate paragraphs 107AL - 115)) did not satisfy the test of undue influence enunciated in Johnson v Buttress (1936) 56 CLR 113 at 134: "… facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected." 71 Perpetual submitted that the material facts pleaded could not provide the basis for such a claim, i.e. that Perpetual as a principal had in fact exerted undue influence over the plaintiff. At most the material facts established that pursuant to an agreement, negotiations were taking place between Perpetual and Mr M concerning the drafting of a trust deed. It submitted that it was difficult to see how in those circumstances Perpetual could exercise undue influence over the plaintiff when it only ever operated through Mr M. 72 The plaintiff submitted that because of her vulnerability, she was totally reliant upon Perpetual, Mr M and her parents for advice on how to protect her judgment moneys once they were due to be paid to her. That of itself gave to Perpetual a special capacity or opportunity of affecting the plaintiff's will or freedom of judgment, albeit through advice given to Mr M. 73 That position was made clearer when one took into account that those persons alone had the power to create a trust (with her consent) and that the plaintiff had no independent advice before she consented to the trust despite Perpetual's initial insistence that she have it. By Perpetual proceeding to create the trust and take an appointment as its trustee, it engaged in an unconscientious use of the special capacity or opportunity which it had as a result of the plaintiff's condition. 74 I am satisfied that the plaintiff, despite the deficiencies in form, has pleaded an arguable case of undue influence and I decline to strike out paragraphs 116 - 118 2FASC. 75 Perpetual submitted that the material facts pleaded by the plaintiff failed to establish a duty of care owed by it to her and in particular, the content of the duty pleaded in paragraph 134E. Perpetual submitted that there was no basis for the existence of a duty on its part to exercise reasonable care and skill in providing financial and other advice to the plaintiff. 76 Once the existence of a trust creation agreement is arguable, the existence of a duty of care becomes equally available to the plaintiff. As Perpetual appreciated, the only issue was the content of that duty. 77 The existence and content of a duty of care in unusual circumstances was considered by the Court of Appeal in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 and Makawe Pty Limited v Randwick City Council [2009] NSWCA 412. In Stavar Allsop P said: "[102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury." 78 It is clear from the "salient features" identified in Stavar (and referred to with approval in Makawe) together with the particular features of this case, including the plaintiff's vulnerability, that the content of the duty of care relied upon by the plaintiff is arguable and should not as a matter of pleading be struck out at this stage. 79 The third category of complaint is that the allegations that Perpetual's officers knew that their conduct was wrongful goes beyond mere breach of duty or reckless indifference to breach and is tantamount to an allegation of fraud. In those circumstances, proper particulars should be provided. This category of complaint is similar to that relied upon by the first and second defendants when they complained of inadequate particularisation of "intention" as it affected the allegations made against them. 80 The plaintiff's response to this category of complaint was to note that Perpetual did not challenge the arguability of the allegation but the adequacy of its particularisation. In those circumstances, the plaintiff undertook to better particularise that aspect of her claim. 81 This concession by the plaintiff is an appropriate one. By reference to one of the examples raised by Perpetual, i.e. paragraph 59(c), it is clearly entitled to know whether the plaintiff's allegation is that Perpetual positively negotiated with Mr M with a view to avoiding Perpetual's insistence that a court order be obtained before payments out were made, or whether it was a matter of Mr M advising Perpetual as to what he intended to do and Perpetual acquiescing in that course of conduct. 82 Perpetual's fourth category of complaint is that by reference to clause 3.1 (c) of the CST deed the pleading of the case of breach of trust against it in paragraph 107 must fail. Clause 3.1(c) relevantly provides: " Payments From Trust Fund 3.1(c) Benefit of Principal Beneficiary Until the Determination Date, the Trustee may from time to time pay the whole or any part or parts of the income or capital of the Trust Fund to or apply it for the benefit of the Principal Beneficiary or to a Company or the shares of which are beneficially owned by the Principal Beneficiary or in any manner which the Trustee considers to be the maintenance, education, advancement or benefit of the Principal Beneficiary. For this purpose the Trustee may make payments for the benefit of the Principal Beneficiary to a person who, in the opinion of the Trustee: (c) Is a spouse, child, grandchild, sister, parent, grandparent of the Principal Beneficiary;" 83 The payment referred to in paragraph 107 of 2FASC was a payment of $320,880 made to the plaintiff's parents for interest on the Griffiths v Kerkemeyer component of her damages award. The payment was made on 16 May 2003. Perpetual submitted that under the terms of the CST the trustees had power to make the payment. 84 The plaintiff submitted that the payment could not be regarded as for the benefit of the Principal Beneficiary, nor could it be considered to be for her maintenance, education, advancement or benefit. She submitted that the purpose of the trust had to be taken into account as well: "The Trustee has agreed to accept the appointment on the terms of this Deed for the purpose of fulfilling the objective of protecting and advancing the interests of Calandre Simpson."

She submitted that there was clearly an arguable issue as to whether such a payment out was in accordance with the terms of the trust. 85 The plaintiff submitted that this payment to the plaintiff's parents, which was never approved by a court, which was based on a gratuitous payment (the Griffiths v Kerkemeyer component of the plaintiff's damages award) and which was nevertheless made by Perpetual without such a court order could not reasonably be said to be for the plaintiff's benefit within the meaning of the trust deed. 86 I agree with the plaintiff's submission that the pleading does raise an arguable issue and I decline to strike out paragraph 107 of the 2FASC.

Conclusion 87 The strike out applications have all highlighted the difficulties created by the form of the 2FASC. In particular, all of the applicant defendants have complained about the rolled up nature of the allegations and the technique of incorporating into specific allegations other quite lengthy paragraphs in the statement of claim. A particular problem is the tendency to make the same allegation against all of the applicant defendants without differentiating sufficiently, the particular allegations relied upon against each defendant. 88 The 2FASC is already a lengthy document comprising 135 folios. I can appreciate the desire of the pleader to reduce where possible the length of the document by grouping together similar claims and by referring to previously pleaded paragraphs in the statement of claim so as to avoid unnecessarily repeating them. Despite those intentions, the end result has been a document which obscures rather than enlightens as to the detail of the plaintiff's claim. A number of the paragraphs to which the Court's attention has been drawn are not only extraordinarily difficult to understand because of references to other parts of the statement of claim, but are themselves so densely drafted as to exacerbate the problems of understanding exactly what they mean. 89 I do not propose to summarise the conclusions which I have set out in these reasons. They are sufficiently set forth in respect of the particular complaints by each of the applicant defendants. What is clear from those conclusions is that the 2FASC requires a major redraft so as to make clear, in respect of each of the applicant defendants, what material facts are relied upon and to provide where necessary, but only where necessary, particulars sufficient to enable those material facts and the legal conclusions arising from them, to be understood.

Costs 90 In relation to the first and second defendants, their complaint in relation to Mr H and in relation to the form of the 2FASC generally, has been made out. Their complaint concerning the pleading of intention and the mental element underpinning the allegations against Mr M, have not been made out. Much of their submissions, particularly the oral submissions, related to this complaint. In those circumstances, the most appropriate order is that the costs of their application should be determined by the ultimate outcome of the proceedings. 91 The complaints by the sixth and seventh defendants have been made out and were conceded by the plaintiff. The sixth and seventh defendants should have their costs of this application. 92 Many of the complaints by Perpetual have been made out, in particular, its complaints as to form. It has failed in its attempt to have those parts of the 2FASC which related to the period before 7 March 2002 struck out. Most of its argument related to that latter point. In those circumstances, I propose to follow the same approach as I did with the first and second defendants and to order that the costs of its application should follow the outcome of the primary proceedings. 93 From the plaintiff's point of view, she has succeeded in resisting challenges to the substance of her claims against Perpetual and on some pleading issues, in her claim against the first defendant. What are overwhelmingly clear, however, are the significant defects in form of the existing 2AFSC. The complaints of all of the applicant defendants in this regard have been largely made out and the document will have to be subsequently redrafted. In those circumstances, it would be quite inappropriate for the plaintiff to have her costs of these applications at this stage. Insofar as the first and second defendants and Perpetual are concerned, she should only have her costs of these applications if she is ultimately successful against those defendants. As indicated above, she should pay the costs of the sixth and seventh defendants of this application in any event.

First and Second Defendants' application for security for costs 94 The first and second defendants seek an order in the following form: "(1) That the plaintiff provide security for the costs of the first and second defendant, pursuant to s 23 of the Supreme Court Act 1970 and s 67 of the Civil Procedure Act 2005, such security to be provided on the following terms: 1.1 In the amount of $500,000 or such other amount as the Court may order. 1.2 By way of bank guarantee issued by a bank incorporated in Australia. 1.3 Such guarantee to contain a provision, or a provision substantially to the effect, that the funds secured by the guarantee are to be released by order of the Court and as directed by the Court. 1.4 In the alternative, such terms as the Court deems appropriate. (2) That these proceedings be stayed until such time as the plaintiff has provided security for costs of the first and second defendant in accordance with the Court's orders." 95 In support of their application, the first and second defendants rely upon an affidavit of Mr Price, sworn 5 November 2009. That affidavit sets out a calculation of costs likely to be incurred by the first and second defendants in defending the proceedings. The figure arrived at exceeds $500,000. Annexed to the affidavit is correspondence between the solicitors for the first and second defendants (YPOL), the solicitors for the plaintiff (TL) and the solicitors for Perpetual (TC). 96 The effect of that correspondence was that in February 2009 TC had suggested to TL that judicial advice be sought as to whether the trust could meet any order for costs made against the plaintiff in these proceedings. The letter said: "It is arguable though that in contributing to any costs for which your client is liable, our client as a co-trustee may be jeopardising your client's future care and maintenance and, therefore, not acting in her best interests. Our client considers that there may be something to be gained by seeking judicial advice as to what would be in your client's best interests in the circumstances. Furthermore, while the issue of costs may be, at this stage, speculative, judicial advice now may assist in the better management of this particular matter."

TL responded to the effect that the plaintiff did not consent to judicial advice being sought on that issue at that stage. 97 By letter dated 26 August 2009 YPOL wrote to TC seeking an undertaking that the trust would approve payments to discharge any order for costs that the plaintiff may have to pay the first and second defendants. TC responded as follows: "Our client has not received any request from Ms Simpson (or those acting on her behalf) to undertake to reimburse your clients or any other party in respect of any costs orders awarded in their favour against Ms Simpson. We are instructed that, given the above, our client does not propose to indicate what its response to such a request could be at this stage." 98 By letter dated 18 September 2009 from YPOL to TL the following was said: "It is our understanding that your client has no assets apart from her personal effects. Although she is the sole beneficiary under a trust, she has no right to terminate the trust and call for the legal title to the substantial trust fund. In these circumstances, we have concerns that your client will be unable to satisfy any costs orders made in our client's favour. We would be grateful if you could provide us with documentary evidence to satisfy our client that, in the event that it obtains a costs order in its favour, your client will be able to satisfy such costs order." 99 By letter dated 22 September 2009 TL responded by refusing to provide the information sought and by referring to the Uniform Civil Procedure Rules Pt 42 r 42.21. 100 The plaintiff did not file any evidence in relation to this application. 101 The thrust of the submissions on behalf of the first and second defendants was that there was a fund available to meet their costs if they were successful in the litigation but that they were unwilling to wait until the conclusion of the proceedings to see whether the trust would pay such costs from the fund. They wanted that matter to be clarified and their costs position secured at this point in time. 102 In making the application, the first and second defendants conceded that it was unusual for security for costs to be ordered against an individual on the grounds of impecuniosity Philips Electronics Australia Pty Limited v Matthews (2002) 54 NSWLR 598 at 609. However, they relied upon the qualification to the general rule explained by Hodgson JA as follows: "… that rule does not mean that there are no circumstances in which a natural person without assets will be required to provide security for costs, or subjected to a stay of proceedings until security is provided. For example, if a person with very substantial assets in New South Wales transferred them all overseas into the name of another person shortly before commencing expensive proceedings, that might possibly be considered sufficient justification to order security for costs … or stay the proceedings until security for costs is provided." 103 In essence the first and second defendants appear to be submitting that they should not be left in a position of uncertainty as to costs until the proceedings are decided. 104 The plaintiff opposed the motion on two bases. The first was that under the terms of the CST, the plaintiff could not provide the security sought so that an order to provide such security would prevent her pursuing her claim. The second was that the plaintiff's inability to satisfy any costs order made against her, was due in part to the conduct of the first and second defendants, i.e. they procured the payment of $4 million from the judgment before the CST was created, they procured the creation of the CST and they procured the terms of the CST so that the plaintiff had no control over the application of the trust funds. 105 There is no question as to the Court's power to make the order sought. Section 23 of the Supreme Court Act provides a broad power to make orders generally and s 67 CPA provides for the granting of a stay. Significantly, however, UCPR Pt 42 r 42.21 is the rule which expressly provides for the making of orders for security for costs against plaintiffs. The plaintiff does not come within any of its provisions. Accordingly, in line with the observations of Hodgson JA in Philips Electronics the circumstances in which a court would make an order for security for costs outside of Pt 42 r 42.21 would need to be somewhat special or unusual. It is noteworthy that the circumstances of this case do not get close to the particular example given by Hodgson JA. 106 Of the cases to which the Court was referred, the two which provide most assistance are Chapman v Luminis Pty Limited [2002] FCA 496 and K P Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189. In Luminis the court had regard to six specific matters which were relevant to an application for security for costs. They were: The prospects of success. The quantum of risk that the costs order will not be satisfied. Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim. Whether any impecuniosity of the appellants arises out of the conduct complained of. Whether there are aspects of public interest which weigh in the balance against such an order. Whether there are any particular discretionary matters peculiar to the circumstances of the case. 107 For the reasons already given, the plaintiff has an arguable case on the pleadings. There is some risk that a costs order will not be satisfied, although the correspondence between TL and TC would suggest that at the conclusion of the hearing, if an adverse costs order were made against the plaintiff, she would call upon the trust to pay that obligation. As to whether the trust would do so is not known. This gives rise to the third consideration, i.e. that the making of a security for costs order at this stage would run a risk of stifling the plaintiff's claim. On the pleadings there is a clear case that the plaintiff's impecuniosity in part is due to the conduct of the first and second defendants. There are no matters of public interest which impact on this application. 108 Finally, there are discretionary matters which are peculiar to this application. The trustees who would be asked to decide whether or not to make a payment in accordance with an order for security for costs are themselves defendants in the proceedings. Given their position it would be inevitable that they would seek judicial advice before making any payment. Such an application would involve costs and may well prove to have been needless if the plaintiff succeeds in her claim. 109 In applications of this kind, there is always a tension between the right of an impecunious plaintiff to pursue his or her claim and the right of a defendant to have some guarantee that if it successfully defends the proceedings, it will be able to recover costs. The considerations referred to in Chapman v Luminis provide some assistance in resolving this tension. Those considerations largely favour the plaintiff. 110 No particular injustice or pressing need for security for costs has been identified by the first and second defendants in their submissions. It would certainly be more convenient for them to know with certainty what the costs position is, but the absence of such certainty will not prevent them adequately defending the claim. Moreover, nothing special or unusual has been identified in their application which would justify the Court in going beyond the specific categories referred to in UCPR Pt 42 r 42.21. 111 From the plaintiff's point of view, however, there are real difficulties associated with compliance with the order. It is not a simple matter of her applying to the trust. The trust would then have to make an application to the Court, which would involve not insubstantial costs and probably new solicitors being retained on that application. In any event, as the plaintiff has submitted, it is her case that the position in which she finds herself is a product, at least in part, of the conduct of the first and second defendants. 112 Accordingly, not only have the first and second defendants failed to establish a compelling case for the relief which they seek, there are persuasive considerations which favour the rejection of their application. In those circumstances, I propose to dismiss the application for security for costs by the first and second defendants.

Orders 113 The orders which I propose are as follows:

(1) Subject to the observations which I have made in these reasons for judgment, I grant leave to the plaintiff to file a second further amended statement of claim. The plaintiff is entitled to include in that document the causes of action raised in the 2FASC, the subject of these applications.

(2) Where specifically referred to in these reasons (e.g. [27]) the submissions of the applicant defendants are to be treated as a request for particulars and the plaintiff is to provide the particulars sought.

(3) The notices of motion by the applicant defendants are each dismissed.

(4) The motion for security for costs by the first and second defendants is dismissed and the first and second defendants are to pay the plaintiff's costs of that motion.

(5) The plaintiff is to pay the costs of the sixth and seventh defendants in respect of their motion to strike out parts of the 2FASC.

(6) The costs of the motions to strike out parts of the 2FASC brought by the first, second and fifth defendants are to be in accordance with the final outcome of these proceedings. **********

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