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EX TEMPORE Judgment (REVISED)

1. By notice of motion filed on 5 August 2019 the plaintiff seeks this order: "The plaintiff has leave to amend her statement of claim, including so as to join Mark Alexander Phillips and Nicholas John Symons, being relevant partners of the law firm now known as Symons Phillips Lawyers, and plead her intended claim against the said partners."
2. For present purposes, the intended claim need only be briefly stated. The plaintiff sues the existing defendant in the plaintiff's capacity as the executor of the estate of the late Cecil Inch and, by representation, in her capacity as the nominated administrator of the estate of the late Maud Inch. As will be apparent, the putative second and third defendants are solicitors.
3. These proceedings have already been the subject of the determination of a separate question: Valverde v Inch [2018] NSWSC 366; (2019) 19 BPR 39421. In that judgment, Lindsay J answered the question stated for separate determination (at [127]): "The estate of Maud Inch (who died on 23 October 2009) was, upon completion of the sale of the property known as 48 Botany Street, Bondi Junction, by the contract of sale dated 12 September 2009, completed on 9 November 2009, beneficially entitled to 40% of the net proceeds of sale."
4. The basic allegation which the plaintiff now wishes to make against the putative defendants is that they wrongfully disbursed so much of the proceeds of sale, as they are referred to in the answer which I have just set out, as were the property of the estate of the late Maud Inch. The evidence is that the allegedly wrongful disbursement was made by the putative defendants on 11 December 2009. The plaintiff wishes to allege that by making that disbursement, the putative defendants breached duties and obligations which are now sought to be enforced by the estate of the late Maud Inch in contract, tort, fiduciary duty and equitable fraud.
5. The proposed amended statement of claim which is now before the Court makes the first of those three claims clear. In the course of argument, Mr E W Young of Counsel, who appeared with Ms F McNeil of Counsel for the plaintiff, suggested that there was also intended to be encompassed an allegation of equitable fraud which would attract the operation of the twelve year limitation period in s 47 of the Limitation Act 1969 (NSW) (the "LA").
6. Mr C F Hodgson of Counsel, who appeared for the putative defendants, opposed the amendment, on the basis that it was futile because the causes of action alleged were statute-barred. That proposition was based upon recognising that there are three relevant dates. The first date is 11 December 2009, when the money was disbursed. The second date is 11 September 2015, when the summons which commenced these proceedings was filed. The third date is today.
7. Mr Hodgson's point turned on the proposition that because what was being proposed to be done was to add the putative defendants as new parties to the proceedings, then the effect of UCPR Pt 6 r 6.28 would be that the date of commencement of the proceedings in relation to the putative defendants would be "taken to be the date on which the order is made or such later date as the Court may specify in the order". On that theory, and subject to the impact of the LA on the proposed actions of breach of fiduciary duty and equitable fraud, it was clear (so it was submitted) that the proposed claims against the putative defendants were statute-barred because nearly 10 years had elapsed since the date of the allegedly wrongful disbursement.
8. The plaintiff, for her part, relies upon the relation back of the commencement of the proceedings provided for in s 65(3) of the Civil Procedure Act 2005 (NSW) (the "CPA"). Section 65 provides: "65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4) (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings."
9. Mr Young accepted that, at least in relation to the proposed claims in contract and tort, the limitation argument raised by the putative defendants was good unless CPA ss 65(2)(c) and (3) applied. Slightly different considerations apply in relation to the equitable claims, about which I will say more in a moment.
10. The legal issue underlying the present debate is whether or not s 65(2)(c) applies where the new cause of action which is being added to the claim involves the addition of new parties and, if it did, its relationship (if any) to UCPR Pt 6 r 6.28. Neither party was able to identify authority that was binding on me in relation to those questions. Because I have decided, having regard to the overriding purpose by reference to which the Court's power to allow the amendment must be exercised (see CPA s 56(2)), that the amendment ought to be allowed so that the limitation questions can be dealt with when all of the relevant facts are before the Court, it is not appropriate for me to say a great deal about the merits of the legal argument.
11. Mr Young drew the Court's attention to the decision of the Court of Appeal in Greenwood v Papademetri [2007] NSWCA 221 ("Greenwood"). That case concerned CPA s 65(2)(b). J C Campbell JA (with whom Tobias JA agreed) said: "27 If, however, a party can be joined under section 65 Civil Procedure Act 2005, section 65(3) has the effect, unless the court otherwise orders, that the amendment is taken to have had effect from the date on which the proceedings were commenced. Thus, if a person who was not previously a party can be made a party pursuant to section 65, and the proceedings themselves were commenced before the expiry of any limitation period applicable to that person, any limitation defence that that person would have had, if new proceedings had been commenced against him or her on the date the order was made, becomes unavailable. In this way, section 65 has the practical effect of an amendment to the Limitation Act 1969. Section 65(5) makes explicit that section 65 is intended to have such an effect. … 78 I respectfully disagree with this reading of section 65(2)(b). I doubt that a rigid dichotomy can be drawn between adding an additional party, and substituting one alleged party for another. If it mattered, I see no violence to language in saying that litigation started out with A as the defendant, but then A and B were substituted as the defendant. More importantly, the scope of the power in section 65(2)(b) does not depend upon whether or not the amendment is one that "substitutes" a new party. As earlier explained, I would not follow the first possible reading of the principle in Hayward, and in my view Sullivan v Van der Broek did not have as its ratio that there was never any power under Part 20, rule 4 for an additional party to be added, as opposed to substituting one alleged party for another."
12. In reliance on those passages, Mr Young's submission was that, by parity of reasoning, s 65(2)(c) ought also to apply to a case where the new cause of action the subject of the amendment involved the addition of new parties. Insofar as UCPR Pt 6 r 6.28 was inconsistent with that outcome, then he submitted that the statute prevailed over the rules.
13. For his clients' part, Mr Hodgson referred the decision of Simpson J, as her Honour then was, in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. In that case her Honour did address the question at bar: "67 The plain language of s 65(2)(c) does not support the plaintiff's claim. It permits the addition or substitution of a new cause of action arising from the same or substantially the same facts as those giving rise to an existing cause of action. What is implicit and clearly intended is that the additional cause of action permitted is a cause of action against an existing defendant, and not a new defendant. 68 As mentioned above, s 65(2)(c) does incorporate a provision which, to an extent, is capable of overriding a limitation period provided for in the Limitation Act. That suggests to me that all that was intended by s 65(2)(c) was to permit the formulation of causes of action arising out of facts already pleaded so that the defendant is not deprived of any right otherwise conferred. 69 In any case, as with s 64(1)(b), the power is discretionary, and for reasons already given, it would rarely be exercised in such a way as to deprive a person who was not already party to the proceedings of a right conferred to a limitation statute."
14. While it is clear from her Honour's reasons that Greenwood was cited to her, it does not appear that her Honour had to consider the argument which Mr Young has sought to make today. I am, of course, not bound by her Honour's decision, but it is nevertheless entitled to great respect. However, I find myself in the unfortunate position that, on the basis of the limited argument which has taken place before me today, the conclusion which her Honour reached in relation to CPA s 65(2)(c) is not so obvious to me when the argument which Mr Young wishes to make is taken into account.
15. The legal dispute that I have outlined above is clearly an important one and plainly arguable on both sides. In my respectful opinion, in the absence of compelling reasons, it is undesirable for a question of that potential importance and difficulty to be determined on an interlocutory application of this kind. Furthermore, I am mindful of the general reluctance of the Court to determine limitation arguments at an interlocutory stage: Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514.
16. The fundamental task of the Court is to apply the CPA and the rules so as to achieve the overriding purpose of the cheap, just and quick disposal of the issues genuinely in dispute between the parties (CPA s 56(1)). That involves taking into account the dictates of justice (CPA s 58(1)). Here, those dictates include the right of the plaintiff to bring proceedings against the putative defendants, in circumstances where the new causes of action arise from substantially the same facts as those that are currently pleaded against the first defendant. On the other hand, those same dictates of justice must take into account that the putative defendants should not be lightly deprived of any of the potential limitation defences that might be available to them.
17. The decisive factor, in my mind, in favour of allowing the amendments (but, as I shall explain, preserving the rights of the putative defendants to argue the limitation defences and the proper construction of s 65(2)(c) in the context of a final hearing when all the facts are known) arises from the proposed claim for breach of fiduciary duty and, as adumbrated today in argument, equitable fraud. The application of the LA to equitable claims is not always straightforward. Section 23 of the LA provides: "23 EQUITABLE RELIEF Sections 14, 16, 17, 18, 20 and 21 do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief."
18. Any attempt to rely upon a limitation defence to an equitable claim necessarily involves determining: 1. precisely the nature of the equitable claim that is being brought, both as a matter of fact and law; 2. what, if any, is the appropriate analogy with a common law action for the purposes of the LA; and 3. insofar as it is properly characterised as the exercise of equitable jurisdiction, whether or not the defendant's reliance on the limitation defence to the equitable claim is unconscionable and therefore ought not be allowed.
19. All of these, especially the last, are fact-sensitive matters which are best left, save in the most obvious of cases, to a final hearing. This is not such an obvious case.
20. With his characteristic thoroughness, Mr Hodgson did attempt to persuade me that, faced with a limitation defence to the equitable claims, a reply based on unconscionability was not open to the plaintiff. Mr Hodgson accepted that he would have to make good that submission to the well-known standard in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129 per Barwick CJ. Even in the limited way the facts were advanced before me, I am not satisfied that such a reply would be "so obviously untenable that it cannot possibly succeed" or "manifestly groundless".
21. Accordingly, this is a clear case where the limitation defences and related questions of statutory construction must, in the interests of justice to both parties, be reserved to be determined in the context of a full hearing when the parties have presented all the facts upon which they propose to rely. I am fortified in that course by Mr Hodgson's entirely proper concession that, but for the question of their limitation defences, the putative defendants are unable to point to any practical prejudice that they would suffer if the amendment were allowed so that they were joined in these proceedings.
22. Taking all of the foregoing matters into account, I propose to grant leave to the plaintiff to amend, but on terms that any limitation defences and the question of the applicability of s 65(2)(c) remain open for argument to the putative defendants. While the affidavit in support of the plaintiff's notice of motion attached a proposed amended pleading, there was no dispute that the plaintiff should be given a further opportunity to bring in an amended statement of claim having regard to the matters raised in the course of argument today.
23. The orders of the Court are: 1. Subject to order 2, grant leave to the plaintiff to file and serve on or before 6 December 2019 an amended statement of claim joining Mark Alexander Phillips and Nicholas John Symons as second and third defendants and alleging against them any or all of breach of contract, breach of tortious duty, breach of fiduciary duty and equitable fraud as the plaintiff may be advised. 2. Order 1 is made upon terms that notwithstanding that order, the second and third defendants shall be at liberty to plead any limitation defence and to make such submissions as they may be advised as to when the amendment is taken to have had effect (including that the plaintiff does not have the benefit of s 65(3) of the Civil Procedure Act 2005 (NSW)). 3. The second and third defendants are to file and serve their defence and any cross-claim on or before 7 February 2020. 4. The plaintiff is to file and serve any reply and any defence to cross-claim on or before 28 February 2020. 5. The costs of the plaintiff's notice of motion filed on 5 August 2019 are to be the parties' costs in the cause. 6. List the proceedings for further directions on 4 March 2020 before the Equity Registrar.