Wakim v Tadros

Judgment - ex tempore (revised 18 June 2012) 1HIS HONOUR: The plaintiff wishes to amend his statement of claim so as, among other things, to bring a claim against his brother, Mr Moussa Wakim. 2So far as I can derive from the statement of claim and from the submissions of counsel, part of the plaintiff's case is that he lent $500,000 to the first defendant, Mr Tadros, to enable Mr Tadros to buy out his partner, the second defendant (J & R) in a used car dealership. Mr Tadros has since gone bankrupt and, accordingly, the claim against him is going nowhere. 3It is unnecessary to canvass the ways in which the plaintiff seeks to articulate his claim against J & R and the other existing defendants. 4The claim that is sought to be articulated against Mr Moussa Wakim is set out in paras 205 to 207 (and the particulars to the last mentioned) of the further amended statement of claim. Those paragraphs read as follows: Claim against MW 205.MW has been paid monies by J & R that are funds which J & R received from Tadros or that were intended for Tadros by GW and to which he was not entitled. 296.When receiving these funds, MW knew they were paid by Tadros or intended for Tadros and that neither he nor J & R were entitled to the funds. 207.As a consequence, Tadros is entitled to an order that MW pay him all monies received by J & R from him or intended for him and paid to MW. Particulars a)MW paid the sum of $100,000 on his share of the mortgage at 860 Hume Hwy Bass Hill from sums he received from J & R and as paid by Tadros to J & R as repayment of the loan from GW. 5On the face of things, those paragraphs do not show any cause of action of the plaintiff against Mr Moussa Wakim. However, it is necessary to go back to paras 62 to 66. In substance, those paragraphs assert that: (1)Mr Tadros had filed (or purported to file) a cross-claim in the proceedings against, among many others, Mr Moussa Wakim. (2)Once Mr Tadros became bankrupt, his interest in the claim adumbrated by that claim vested in his trustee. (3)The trustee assigned that claim to the plaintiff; and (4)Notice of that claim was given to, among others, Mr Moussa Wakim. 6What follows, including paras 205 to 207, is apparently a repetition of the final version of the cross-claim filed by Mr Tadros. 7I should note that Mr Moussa Wakim denies having received notice of the assignment, but nothing of present moment turns on this. 8Thus, it may be inferred, paras 205 to 207 need to be read as asserting that an entitlement by the plaintiff to the claim apparently alleged by Mr Tadros, that entitlement arising by virtue of the assignment. 9Whether or not an assignment of what appears to be a bare cause of action is good in law or in equity is a difficult question. It was referred to, most recently, by the High Court of Australia in Equuscorp Pty Limited v Haxton (2012) 86 ALJR 296. It is convenient to refer to the joint judgment of Gummow and Bell JJ at [79] where their Honours held that it was well established that the assignment of a cause of action could be enforced in law or in equity if "a genuine and substantial interest" in the suit is demonstrated. 10Whether or not the plaintiff had a genuine and substantial interest sufficient to support an assignment of a bare cause of action is not, I think, a matter that should be decided on an application for leave to amend. I do no more than note that the interest asserted is the plaintiff's interest in the debt owed by Mr Tadros. Whether or not that satisfies the requirement would be a matter for argument, if otherwise, it were appropriate for Mr Moussa Wakim to be joined. 11The primary difficulty seems to me to lie in the way in which the proposed claim is pleaded. It will be observed that paras 205 and 206 assert that the money in question was either money received by J & R from Mr Tadros or money that the plaintiff apparently intended to be paid to Mr Tadros. One would have thought that if the plaintiff had paid money to J & R that was intended for Mr Tadros he would know, and would be able to plead the payment in a clearer way than he has done in paras 205 and 206. 12The same formula is repeated in para 207. However, and perhaps somewhat inconsistently, the particulars to para 207 appear to limit the payment to one that was made by Mr Tadros to J & R in repayment of the loan from the plaintiff. Quite why Mr Tadros would choose this obscure way of repaying his obligation to the plaintiff when, presumably, he knew where the plaintiff could be found and was able to give him the money directly, is not clear. 13At one stage it was submitted that some clarification of this obscurity might be obtained from paras 33B and 33C of the further amended statement of claim. I set out those paragraphs: 33B.It was an oral term of the Loan Agreement that all Tadros' communications about the loan were to be with J & R as agents for GW and J & R's agents. 33C.It was an implied term of the Loan Agreement acting that the loan proceeds would be advanced to Tadros by J & R as agent for GW. 14I do not think that those paragraphs diminish the confusion. On the contrary, they could be read to suggest, among other things, that a payment by Mr Tadros to J & R, in reduction of the loan apparently received from the plaintiff, would be a sufficient discharge to the extent of the payment. If that were so then the payment would have achieved its purpose, notwithstanding that (if it be the case) J & R did not account for the payment to the plaintiff. 15Further, whether any such hypothetical failure to account sounded at law or in equity would depend entirely on the terms of the agency between J & R and the plaintiff, and on the state of dealings between them. That is important, because if the hypothetical failure to account is actionable only at law, the claim is clearly statute barred and it is very difficult to see what interest the plaintiff could have in the matter asserted by Mr Tadros. In any event, if the claim is only actionable at law, the liability (if any) of Mr Moussa Wakim, for receipt of the payment, could only be a liability for money had and received and any such liability is clearly statute barred in circumstances where it appears to be common ground that the payment occurred more than six years ago. 16If J & R were the agent of the plaintiff, then prima facie it owed him fiduciary obligations. However, again, the characterisation of any liability arising in respect of the payment would depend on the terms of the agency and the state of dealings between them. 17In respect of the limitation defence that has been suggested on behalf of Mr Moussa Wakim, Mr Odgers of counsel, for the plaintiff, relies on s 47 of the Limitation Act 1969 (NSW). Relevantly, that section provides a limitation period of 12 years for an action on a cause of action to recover trust property against a trustee or any other person (s 47(1)(c)). 18If s 47(1)(c) does not apply, and the only claim is one for breach of trust, then, prima facie, the limitation period has expired: see s 48. 19Bearing in mind the almost impenetrable obscurity of the pleading, the embarrassing duplicity in paras 205, 206 and 207, and the fact that, as appeared in the course of argument, it may be that there are other paragraphs scattered through the further amended statement of claim, that may be relevant to the case sought to be pleaded against Mr Moussa Wakim, I have come to the view that the proposed claim as it stands is, in the technical sense, embarrassing and that the plaintiff should not be given leave to plead it. It is embarrassing because, in the circumstances that I have described, it simply does not enable Mr Moussa Wakim to know with any degree of clarity or precision what is the case sought to be made against him. Thus, it does not enable Mr Moussa Wakim to understand, with any degree of precision, how he might defend that claim, or indeed, what material facts might be relevant to his defence of that claim. 20It may be that some of the obscurities could be clarified by the request for and provision of particulars. But it is a plaintiffs job to provided appropriate pleadings of material facts and particulars. It is not the task of the proposed defendant to alleviate deficiencies in the pleading by seeking adequate particulars. 21For those reasons, in my view, the plaintiff should not have leave as sought in prayer 1 of the notice of motion, at least as the claim is framed in the further amended statement of claim. 22I should note that there is raised on behalf of Mr Moussa Wakim an argument based on the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175. In my view, the facts in that case were entirely distinguishable from the facts with which I am presently concerned, and because there is perhaps an available limitation period which has not expired, it is in any event very difficult to see how the principles in Aon could justify refusing leave (as sought) if the claim were properly pleaded and particularised. But since, in my view, the claim is not properly pleaded and particularised it is not necessary to go further. 23I will however hear counsel on whether I should now dismiss the notice of motion, or whether the plaintiff should be given an opportunity to propound a revised version of the pleading which might, perhaps, satisfy the deficiencies that I perceive in the document presently propounded.