Wagstaff v Babiera

Supreme Court of NSW|2013-09-18|Before: Darke J

Introduction 1The plaintiff in this matter, Christine Wagstaff, was married to Christopher Wagstaff between March 1971 and May 2012. Christopher Wagstaff died on 14 September 2012. The defendant to the proceedings is the legal personal representative of his deceased estate. 2By a Statement of Claim filed on 29 May 2013 the plaintiff seeks damages, or alternatively an account, in relation to certain conduct of her late husband in connection with 400,000 units in the Capitax Unit Trust. The units were jointly owned by the plaintiff and Mr Wagstaff. Broadly, the plaintiff complains that the benefit of dividends, which were payable in respect of the units in the period from December 2006 to March 2012, was entirely received by Mr Wagstaff (or a company associated with him) such that she received no benefit at all. 3The defendant filed a Notice of Motion on 9 July 2013 seeking summary dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 r 13.4, or, in the alternative, an order under UCPR r 14.28 that the Statement of Claim be struck out. On 23 August 2013 the Notice of Motion was set down for hearing on 18 September 2013. 4On 13 September 2013 the plaintiff provided a proposed Amended Statement of Claim which was intended to overcome at least some of the complaints made about the plaintiff's case and the way it hitherto been pleaded. The plaintiff, through the written submissions of her counsel, Mr Paterson, indicated that she would seek leave to amend the Statement of Claim in accordance with that proposed pleading. Mr Reuben of counsel, who appeared on behalf of the defendant, dealt with the motion on the basis that the proposed pleading represented the way the plaintiff wished to put her case, but submitted that it failed to overcome the main arguments advanced by the defendant. 5Before dealing with those arguments, it is necessary to describe the factual background to the case the plaintiff seeks to prosecute, and the nature of the causes of action proposed to be relied upon.

Factual background 6On the hearing of the motion, Mr Reuben read two affidavits sworn by his instructing solicitor, Mr Bernardo David, these being affidavits sworn on 8 July 2013 and 10 September 2013. Mr Paterson read three affidavits sworn by the plaintiff, on 3 June 2013, 15 August 2013, and 13 September 2013. The evidence establishes the following salient facts. 7The plaintiff and Mr Wagstaff were married in 1971. They separated in about October 2006, and were divorced in May 2012. They became the joint owners of 400,000 units in the Capitax Unit Trust in 2002. The circumstances in which that acquisition of property took place was not dealt with in the evidence. 8Whilst the plaintiff and Mr Wagstaff were separated, but before they were divorced, eight dividends totalling $1,060,000, were paid by Capitax Pty Ltd, the trustee of the Capitax Unit Trust, in respect of the 400,000 units. 9The amount of each of the dividends was paid by way of a cheque drawn by Capitax Pty Ltd. It appears that each of the relevant cheques was signed by Mr Wagstaff on behalf of Capitax Pty Ltd. Mr Wagstaff was a director of that company at all relevant times. 10Four of the dividends (totalling $420,000) were paid into a joint account held by the plaintiff and Mr Wagstaff with a division of the National Australia Bank known as HomeSide Lending. 11Of the remaining four dividends, one seems to have been made to a business owned by Createc Pty Ltd, a company of which Mr Wagstaff was a director. The other three seem to have been paid to Mr Wagstaff himself. The last two payments, of $200,000 each, were made after the plaintiff and Mr Wagstaff had entered into certain agreements in May 2011 and June 2011, which are described below. 12On 15 May 2011 the plaintiff and Mr Wagstaff signed a document entitled Deed of Release and Settlement. The document provided: This deed is drawn up so that the arrangements for the settlement of the assets of Christine Nola Wagstaff and Christopher Edwin Wagstaff can be brought to an equitable conclusion. Also because there are future commitments they need to be clearly stated and agreed upon. 1. It is agreed that before the distribution of the proceeds of sale of 228 Georges River Rd Kentlyn that the following transfers of title will be signed. That 62 Lawrence St Alexandria be transferred from Joint ownership to Christopher Edwin Wagstaff. That Unit 6 77 Broughton St Campbelltown be transferred from Joint ownership to Christine Nola Wagstaff. 2. That Both parties will share the ongoing costs of Unit 6 77 Broughton St Campbelltown while Vaughan Wagstaff remains a tenant. 3. That Christopher Edwin Wagstaff as soon as possible, but not longer than 6 months after the transfer of title of 62 Lawrence St Alexandria, pay to Christine Nola Wagstaff the balance in cash of the settlement currently $459,000. 4. That both parties agree that the attached asset split be final and no further action be taken. 5. That Christine Wagstaff will sign a share transfer for the units held in Capitax Pty Ltd. 13Attached to the Deed of Release and Settlement was a document entitled "CE and CN Wagstaff Asset situation as at 14 March 2011". That document referred to properties at Kentlyn and Alexandria as well as to two properties in Campbelltown, a motor vehicle, shares in Capitax (said to be worth $1,200,000), and various other items including furniture. It is apparent from that document that the value of $1,200,000 ascribed to the Capitax shares was to be attributed to Mr Wagstaff. As at May 2011, the plaintiff and Mr Wagstaff were the joint owners of four shares in Capitax Pty Ltd. It appears that in October 2011 the ownership of those shares was transferred into the sole name of Mr Wagstaff. 14On 8 June 2011 the plaintiff entered into an agreement which, in its form, bears some similarities to a deed. A number of factual matters are recited in the agreement, including that the property in Kentlyn had been sold for $1,090,000 with settlement due to take place on 5 July 2011. The agreement also records a number of matters agreed by the parties in relation to that property, including that the proceeds of the sale were to be paid to the plaintiff. Further provision is made in the agreement for the transfer of the property at 62 Lawrence Street Alexandria to Mr Wagstaff, the transfer of Unit 6/77 Broughton Street Campbelltown to the plaintiff, and for the payment of $459,000 to be made by Mr Wagstaff to the plaintiff. Paragraphs I and J of the agreement provided as follows: I. The wife [the plaintiff] will do all such things and sign all such documents as may be required to transfer all her right, title and interest to the husband [Mr Wagstaff] in the share units held in Capitax Pty Ltd. J. Both parties agree that the aforementioned financial arrangements and transfer of title and shares are final and no further action is to be taken by one party against the other. 15Also on 8 June 2011 the plaintiff signed a Unit Transfer which provided as follows: I Christine Nola Wagstaff agree to transfer the units in Capitax Unit Trust held jointly in the names of Christine Nola Wagstaff and Christopher Edwin Wagstaff To Christopher Edwin Wagstaff as part of the final asset settlement of both parties. 16The plaintiff deposes that at the time she entered into the above mentioned agreements she had not had the benefit of any legal advice and had no knowledge that a "dividend stream" had been paid for many years.

Alleged causes of action 17The proposed Amended Statement of Claim seeks to raise various causes of action. In relation to the dividends which were paid into the joint account, the plaintiff alleges that she "did not have access" to the joint account, "never used the monies" in the account, did not receive any statements concerning the account, and that Mr Wagstaff received the whole benefit of the dividends paid into the account (see paragraphs 14 and 14A). 18It is further alleged (in relation to all of the dividends) that Mr Wagstaff dealt with the dividends in a manner inconsistent with her interest in the dividends with the intention of denying her interest in them and thereby "converted the plaintiff's interest in the dividends to his own use" and caused loss to the plaintiff (see paragraphs 21-23). 19It is contended in the alternative that Mr Wagstaff "wrongfully appropriated to himself" the plaintiff's share of the dividends and is liable accordingly for monies had and received (see paragraphs 23A and 23B). 20It is contended in the further alternative that in circumstances where the plaintiff had a beneficial interest in the dividends, but Mr Wagstaff had the sole use of the dividends and received more than his share of the dividends, there was a duty to account to the plaintiff in respect of the dividends.

The defendant's submissions 21Under UCPR r 13.4, the Court has power to dismiss proceedings if, in relation to the proceedings, it appears that no reasonable cause of action is disclosed. Mr Rueben advanced two principal arguments in support of the proposition that the proceedings as a whole were obviously untenable and bound to fail. Briefly stated, these were: (1)the plaintiff's claims constitute a "matrimonial cause" within the meaning of paragraph (ca) of the definition found in s 4 of the Family Law Act 1975 (Cth), and by reason of a Proclamation made by the Governor General on 23 November 1983 pursuant to s 40(3) of the Family Law Act, the jurisdiction which is invested in this Court pursuant to s 39(5) of the Family Law Act with respect to matrimonial causes is not able to be exercised; and (2)by reason of the releases given by the plaintiff in the transactions of May and June 2011 the claims sought to be advanced by the plaintiff are not maintainable. 22There were additional arguments directed to certain parts of the plaintiff's claim. In relation to the four dividends that were paid into the joint account, it was submitted that payment into "a regular joint account of the parties" cannot amount to a conversion of property of the plaintiff, and that the deposit of monies into such an account constituted receipt of the monies by the plaintiff. 23In relation to the last two dividend payments (made in July 2011 and March 2012) it was submitted that the plaintiff was unable to prove any title to the dividends because the plaintiff had by that time agreed to transfer her interest in the units to Mr Wagstaff and had executed a Unit Transfer to that effect.

Principles 24The above submissions, and Mr Paterson's responses to them, fall to be considered in the light of the well-known principles applicable to applications for summary dismissal. The leading statement of the principles remains that made by Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 130 where it was emphasised that the power to summarily terminate proceedings is to be sparingly employed and not to be used except where it is clearly demonstrated that the proceedings are so obviously untenable that they cannot possibly succeed, or are manifestly groundless. More recently, in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 the High Court stated at [57]: Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissions (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. 25Reference should also be made to Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24] where the above passage was repeated, and it was stated that the exercise of powers to summarily terminate proceedings must always be attended with caution, whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action, or on the basis that the action is frivolous or vexatious or an abuse of process (see also the decision of the Court of Appeal in Shaw v State of New South Wales [2012] NSWCA 102 at [30] - [32] per Barrett JA). 26Of course, in considering whether to exercise the power to summarily dismiss, the Court must have regard to the matters referred to in Division 1 of Part 6 of the Civil Procedure Act 2005, including the provisions of ss 56 and 58 of that Act.

Matrimonial cause 27The expression "matrimonial cause" is defined in s 4 of the Family Law Act 1975 ("the Act"). The defendant contends that the present proceedings fall within paragraph (ca) of the definition. Paragraph (ca) is relevantly in the following terms: (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship; 28Mr Paterson submitted that the proceedings, which are between the plaintiff and the legal personal representative of the estate of her deceased former husband, are not "proceedings between the parties to a marriage". It was submitted that the defendant does not fall within the inclusive definition of "a party to a marriage" (as found within s 4(2) of the Act), and that the provisions of s 79 (8) of the Act which provide that, in certain circumstances, property settlement proceedings may be completed after a party to the marriage dies, would not have been necessary if a legal personal representative of a deceased husband or wife was included in the definition of a party to a marriage. Mr Paterson also referred to In the Marriage of Rampling (1987) 12 Fam LR 33. That case concerned an application by a wife to commence proceedings for an alteration of property interests out of time in circumstances where the husband had died. Mullane J stated at 34: It is not a matrimonial cause under s 31, because it does not come within the definition of matrimonial cause. Paragraphs (ca) and (f) together would include such an application where both parties are living but not the present proceedings because they are no longer "between the parties" to the marriage. 29Mr Paterson also referred to the decision of the Full Family Court in In the Marriage of RH and DI Sims (1981) 7 Fam LR 667. In that case the Court stated (at 672): For present purposes it suffices to point out that the reference to "a person" in s 4(2) would, on ordinary principles of interpretation, refer to an existing person. Consequently, when the definition of "matrimonial cause" in cl (ca) of s 4 speaks of "proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them ..." it refers to proceedings between two living persons who either are parties to an existing marriage, or who were parties to a marriage which has been dissolved. 30Mr Paterson further submitted that the question whether the proceedings arise out of the marital relationship which once existed between the plaintiff and Mr Wagstaff is a factual issue which is at least a reasonably arguable one. In this regard, he referred to two decisions of Young J in this Court, namely McNeill v McNeill's Transport Pty Ltd (1985) 81 FLR 26 and Colluzzi v Colluzzi [2001] NSWSC 94. 31In the former case Young J stated ( at 27): If the proceedings relate to the matrimonial home then one may infer that they arise out of the marital relationship, but if the property being dealt with is some other species of property, such as property which is being used in trade or commerce, then I do not believe that one can infer merely from the facts of marriage or from the fact that one party says but for the marriage he would not have entered into a commercial relationship with the other party is sufficient to establish the fact that the property dispute arises out of the matrimonial relationship. 32His Honour referred to that passage in Colluzzi v Colluzzi at [36] and then went on to state at [38] and [39]: [38] The words I used in McNeill's case should not be read as meaning that the inference must be made that something arises out of a marital relationship if the dispute is over the matrimonial home. The thrust of the passage is that where the dispute is not over the matrimonial home the inference is harder to draw. Circumstances may mean that the inference should not even be drawn in the case of a matrimonial home. I do not read the passage in the Full Family Court's judgment in Re Savage and Hodgson (supra) as saying anything else. [39] One must always look at the circumstances of each particular case. 33I accept the thrust of Mr Paterson's submissions concerning the meaning of "matrimonial cause". It seems to me that the present proceedings are not proceedings between the parties to a marriage within the meaning of paragraph (ca) of the definition of "matrimonial cause". 34Moreover, it is by no means clear that the proceedings with respect to the property of the plaintiff and Mr Wagstaff are proceedings "arising out of the marital relationship" within the meaning of paragraph (ca) of the definition. As noted earlier, the circumstances in which the 400,000 units in the Capitax Unit Trust came to be owned jointly by the plaintiff and Mr Wagstaff was not a matter dealt with in the evidence. Accordingly, and given that the question must depend upon the particular circumstances of the case, it is not possible, at least at this stage, to conclude with any confidence that the proceedings (even if assumed to be proceedings between the parties to a marriage) arise out of the marital relationship which once existed between the plaintiff and Mr Wagstaff. 35In these circumstances it is not necessary to consider the effect of the Proclamation made by the Governor General on 23 November 1983 pursuant to s 40(3) of the Act. However, even if the effect of the Proclamation was that the jurisdiction conferred upon this Court by s 39(5) of the Act with respect to matrimonial causes was not able to be exercised, that effect would have been overcome by the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (see Young v Lalic [2006] NSWSC 18 at [37] - [48] per Brereton J). 36The first suggested ground for summary dismissal of the whole of the proceedings is not made out.

Releases 37Two releases are relied upon by the defendant. The first is contained in clause 4 of the Deed of Release and Settlement which was entered into in May 2011. By that clause, the parties agreed "that the attached asset split be final and no further action be taken." The "attached asset split" was plainly a reference to the attached document which provides that, inter ailia, Capitax shares (valued at $1,200,000) were to form part of Mr Wagstaff's share of the assets. There is some ambiguity as to whether the phrase "Capitax shares" was intended to refer to shares in that company or whether it was intended to refer to the units held in the Capitax Unit Trust. That ambiguity arises at least in part because clause 5 deals with a transfer by the plaintiff to Mr Wagstaff of "the Units held in Capitax Pty Ltd". This provides some support for the view that the reference to Capitax shares was intended to be a reference to units in the Capitax Unit Trust. If that is so, clause 4 could be construed as an agreement for the "asset split" in respect of the 400,000 units (being 100% to Mr Wagstaff and nothing to the plaintiff) to be final with no further action to be taken by either party. 38However, as Mr Paterson pointed out, the release does not in terms concern dividends which may have been payable in respect of the units. He also referred to the evidence to the effect that at the time of the agreement the plaintiff was not aware that there had been any dividends paid in respect of the units. There was also some evidence that the plaintiff was not aware that Mr Wagstaff owned other properties not referred to in the document attached to the Deed of Release and Settlement. 39Mr Paterson referred to the well known passage in the joint judgment of the High Court in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 123 - 124 where approval was given to the principle that general words in a release are limited to that which was specially in the contemplation of the parties. Reference was also made to the decision of the House of Lords in Bank of Credit and Commerce International SA (In Liquidation) v Ali [2001] UKHL 8 where Lord Bingham stated at [10] "that, in the absence of clear language the Court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware". 40In my view, it is reasonably arguable that the release contained in clause 4 of the Deed of Release and Settlement would not (assuming it to be enforceable) preclude the plaintiff from bringing a claim based upon the manner in which Mr Wagstaff previously dealt with dividends declared in respect of the 400,000 units. The release concerns the "attached asset split". That is, the release is centrally concerned with the ownership of certain assets from the date of the agreement. No further action is to be taken by parties about such ownership. However, the release might not, on its true construction, be wide enough to bar a claim which concerns income which accrued when one of the assets was in joint ownership. 41The second release relied upon is contained in paragraph J of the agreement entered into in June 2011. That paragraph records the agreement of the parties "that the aforementioned financial arrangements and the transfer of titles and shares are final and no further action is to be taken by one party against the other." The scope of the release would seem to cover the transfer of the "share units held in Capitax Pty Ltd" which is referred to in paragraph I of the agreement. Moreover, having regard to the Unit Transfer executed by the plaintiff on the same day, it is likely that the transfer of her interest in the 400,000 units falls within the release. Nevertheless, for reasons similar to those which apply in relation to the May 2011 agreement, it seems to me to be reasonably arguable that the release contained in paragraph J of the June 2011 agreement would not (assuming it to be enforceable) preclude the plaintiff from bringing a claim based upon the manner in which Mr Wagstaff previously dealt with dividends payable in respect of the units. 42In addition, as Mr Paterson submitted, if the releases were pleaded in bar to the plaintiff's claims then questions as to the enforceability of the releases might then arise. Clearly, in circumstances where the plaintiff asserts that she had no knowledge of the dividends, incomplete knowledge about Mr Wagstaff's financial position, and did not receive any legal advice about the agreements, there is some potential for her to contend that the agreements and the releases contained within them are not binding upon her. 43It should be noted, however, that I do not accept the submission made by Mr Paterson that, by reason of s 90G of the Act, a lack of independent legal advice means that the agreements are not binding upon the plaintiff "for all purposes". Section 90G does not have such a broad operation; it operates only so as to identify financial agreements that are "binding on the parties to the agreement" within the meaning of s 71A of the Act and are thereby taken outside the operation of Part VIII of the Act (see Fevia and Carmel-Fevia [2009] FamCA 816 at [185] and [291]; Senior v Anderson [2011] FamCAFC 129 at [95]). 44It follows from the above that the existence of the releases does not mean that the plaintiff's claims, at least insofar as they concern Mr Wagstaff's conduct prior to the making of the agreements, are bound to fail. Accordingly, the second suggested ground for summary dismissal of the whole of the proceedings is not made out.

Dividends paid into the joint account 45Mr Paterson candidly acknowledged that, in so far as the dividends were paid into the joint account, it was very difficult to advance a claim in conversion, and it was for that reason that the proposed Amended Statement of Claim included specific allegations in support of claims for money had and received and an account. 46The claim for an account is said to be based on the principles enunciated in the Full Federal Court case of Squire v Rogers (1979) 39 FLR 106. That was a case concerning real property held in co-ownership. Reliance was particularly placed on the following passage in the judgment of Deane J (at 123 - 4): The cases in which one co-owner can obtain an account of receipts from another co-owner who has had the sole use of the joint property are, except where the sole use has been the result of agreement (whether express, implied or imputed), holding over or actual exclusion, limited to those cases where one co-owner has received more than his share of the rents or other revenues of the common property... 47Mr Paterson submitted that the present case fell within that principle because it was one where Mr Wagstaff had the sole use of the joint account and had received more than his share of the benefit of the jointly owned property. It was further submitted that "it was necessary to look at all the facts of the case to understand what the agreements were" and that the plaintiff's complaint (which also underpins the money had and received claim based on an alleged misappropriation of the plaintiff's share of the funds) was not about the deposit of funds into the joint account but was rather about the way the funds were used by Mr Wagstaff after they had been deposited into the account. 48In West v Mead [2003] NSWSC 161 Campbell J, in the course of discussing the principles applicable to joint bank accounts established by married couples stated at [81]: ... By the very act of joining in signing an authority to the bank whereby either may withdraw from the joint account the spouses are also conferring on each other the authority to withdraw from the joint account. If there is nothing more than the spouse conferring that authority on each other, then either spouse will be able to withdraw the whole of the money contained in the joint account. However, there is no legal necessity for the scope of the authority which exists as between the spouses, to be the same as the authority which the spouses confer on the bank. It is perfectly possible for the spouses to agree, as between themselves, that, even though the bank is given authority to pay out the whole or any part of the money in the joint account on the request of either of them, that authority will only be used in limited circumstances or for limited purposes. Even if there is no expressly stated limitation between the spouses on the authority which they have, it might be the case, depending of the facts in a particular instance, that the court will imply or infer some limitations on the authority which the spouses give to each other to draw money from the account and apply it for their own purposes; if such limitations are proved to exist, and those limitations are exceeded, property purchased with funds from the joint account remain, in equity's eyes, subject to the joint ownership. 49It may be assumed that, in accordance with the mandate given to the bank, Mr Wagstaff had authority to draw money from the joint account. However, as the above passage indicates, the determination of the legal rights of the plaintiff and Mr Wagstaff in relation to the funds deposited into the joint account, and in particular whether Mr Wagstaff may have incurred a liability to the plaintiff arising from his use of the funds, may depend upon an analysis of the facts and circumstances surrounding the establishment and maintenance of the account, and inferences to be drawn from such facts and circumstances. On that basis, it seems to me that it would not be appropriate to dismiss the plaintiff's claim in so far as it concerns the four dividend payments which were deposited into the joint account. Even if it is assumed that the claims in conversion face very substantial difficulties (note, however, Telecom Vanuatu Ltd v Optus Networks Ltd [2005] NSWSC 951 at [19] - [26] per White J) it is simply not possible to conclude at this stage that the claims for money had and received or an account are clearly untenable or groundless.

The payments made in July 2011 and March 2012 50The agreements of May 2011 and June 2011 are each likely to be construed as containing a promise by the plaintiff to transfer to Mr Wagstaff the entirety of her interest in the 400,000 units in the Capitax Unit Trust (see clause 5 of the Deed of Release and Settlement of May 2011, and paragraph I of the agreement of June 2011). If that construction was upheld it would plainly be very difficult for the plaintiff to establish that any conduct by Mr Wagstaff in relation to dividends subsequently declared in respect of the units gave rise to any liability to her. As the agreements to transfer were given for valuable consideration, the plaintiff would, pending completion of the transfer, hold the units on trust for Mr Wagstaff. 51The only answer given by Mr Paterson to this point was that the agreements might not be binding upon the plaintiff. In circumstances where, as I have found, there is some potential for the plaintiff to contend that the agreements of May and June 2011 are not binding on upon her, I do not think that it would be appropriate to summarily dismiss this aspect of the plaintiff's claim. It is also relevant to note that the evidence does not disclose when the dividend, which was paid on 1 July 2011, was declared. It is possible that this dividend became payable before the plaintiff agreed to transfer her interest in the units, and it might not be the subject of any agreement to transfer.

Summary dismissal not appropriate 52For the reasons stated above I do not think that it is appropriate to make any order for summary dismissal of the proceedings, whether in whole or in part. It is necessary therefore to turn to the alternative claim made by the defendant, being an order for the striking out of the Statement of Claim.

Striking out Statement of Claim 53Under UCPR 14.28, the Court is empowered to strike out the whole or any part of a pleading which, inter alia, discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay in the proceedings. However, in circumstances where the plaintiff has recognised that the existing pleading has deficiencies which call for an Amended Statement of Claim, little would be served by undertaking the task of considering the extent to which grounds exist for striking out of existing pleading. In my view, and having regard also to my conclusions that the plaintiff's claims are not untenable, it is preferable to consider whether leave should be granted to the plaintiff to file the proposed Amended Statement of Claim.

Leave to file an Amended Statement of Claim 54I have decided that the plaintiff should have leave to file an Amended Statement of Claim. However, in view of some evident deficiencies in the proposed Amended Statement of Claim it is inappropriate in my view for leave to be granted to file a pleading in that form. These deficiencies include the following: (a)The paragraphs dealing with the joint account (paragraphs 14 and 14A) do not clearly set out the facts relied upon in support of the conclusion that Mr Wagstaff received all of the benefit of the dividends paid into the account; (b)The paragraphs dealing with the money had and received count (paragraphs 23A and 23B) do not clearly set out the facts relied upon in the support of the conclusion that Mr Wagstaff wrongfully misappropriated the plaintiff's share of the dividends to himself; and (c)The pleading contains some material which has no apparent relevance, such as that which is found in paragraphs 8, 9 and 11. 55It is not, of course, the function of the Court to suggest to a party that a case be pleaded in any particular fashion. It is up to the parties to file pleadings which are in accordance with the relevant rules of Court. The above examples (which are not intended to be exhaustive) are merely raised as reasons for declining to give leave to file the proposed Amended Statement of Claim in its current form. In taking advantage of the leave to file an Amended Statement of Claim it will be up to the plaintiff and her legal advisers to determine, in the light of the various issues discussed in these reasons, the appropriate manner of pleading her case.

Conclusion 56The defendant has failed in her application for summary dismissal and I have declined to strike out the Statement of Claim. However, as recognised by the plaintiff, the Statement of Claim requires amendment, and leave was sought to file a proposed Amended Statement of Claim. In view of some defects in that document such leave has not been granted, but the plaintiff has been given leave to file an Amended Statement Claim. 57It seems to me that, as both parties have had some measure of success on the issues raised by the defendant's Notice of Motion, each party should bear her own costs of the motion. In relation the plaintiff's application to amend, it is appropriate to order that the plaintiff pay the defendant's costs of and occasioned by the amendment. 58I make the following orders: (1)Grant leave to the plaintiff to file and serve an Amended Statement of Claim. (2)Direct that such Amended Statement of Claim be filed and served within 28 days. (3)Order that the plaintiff pay the defendant's costs of and occasioned by the amendment. (4)The defendant's Notice of Motion filed on 9 July 2013 is otherwise dismissed. (5)Each party is to bear her own costs of the Notice of Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2013

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