Wallis v Hunt & Ors [2018] QDC 234

1. The proceedings were against the wrong parties, identifying for the information of the plaintiff the parties who were said to hold units in the Four Amigos Property Trust, which it was said had purchased the property;

2. The property was not, and had not ever been, held in co-ownership, so that no order under s 38 of the Property Law Act was possible.

3. The statement of claim lacked any particularity regarding the terms of any agreement.

[3] In relation to the claim for $94, 950.99 the letter stated:

"The claim seeks restitution and return of moneys in the amount of $94,950.99 but the alleged advance of those moneys by your client has not been pleaded in the statement of claim and requires significant further particulars."

[4] The statement of claim did not plead any contract with the defendants, lacked any particularity regarding the terms of any agreement in respect of the property, and lacked any particularity about the $94,950.99 said to have been "invested into the property".

[5] At the hearing of the Defendant's application to set aside the claim the plaintiff sought to rely on an amended claim in which the plaintiff seeks;

(a) Damages for breach of contract...and/or as;

(b) A liquidated demand on account of the services rendered and money advanced to the defendants for the benefit of the defendants; and/or as

(c) Statutory damages pursuant to section 236 of ACL for monies advanced to the defendants and restitution."

The plaintiff also sought to rely on an amended statement of claim which entirely redrafted the plaintiff's case.

[6] In her original statement of claim the plaintiff relevantly alleged;

(i) The plaintiff and the defendants "entered into the Four Amigos Property Trust"

(ii) The plaintiff and the defendants were directors of the trustee of that trust, Four Amigos Development Pty Ltd

(iii) That company was deregistered on 11 February 2013

(iv) The plaintiff entered into "an agreement and trust with the defendants in order to purchase the property at 31 Stanley Terrance Wynnum... with the view to invest, refurbish and renovate the property."

(v) The agreement was that "the proceeds of sale was to be equally divided between all parties"

(vi) The property was purchased on 6 November 2009 for $280,000.00 and sold on 2 August 2012 for $460,000.00

(vii) The purchaser was Teahah Investments Pty Ltd, a company described as "the first defendant's private company" and which is still the registered owner of the property

A. was unaware and had no knowledge of the sale

C. has received nothing from the proceeds of sale, which were distributed between the defendants

[7] In reliance on those pleaded facts the plaintiff alleged;

1. "It would be unconscionable for the defendants to retain the benefit of the sale proceeds in circumstances where it was agreed that the proceeds would be equally distributed" and

2. That she has suffered a loss of $95,950.99 being "the total amount that was invested into the property."

[8] The plaintiff had sought in the prayer for relief in the Statement of Claim:

(i) $94,950.00 for "monies advanced to the defendants and restitution"; or

(ii) An order under s 38(1) of the Property Law Act for the appointment of a trustee for sale;

(iii) An order that the trustee apply the proceeds of sale of the property as follows:

- To pay expenses of sale including the trustee expenses

- An amount to reimburse the plaintiff for holding costs and improvements to the property

- An equal distribution from the proceeds of sale to the plaintiff of the property

[9] As I have said the claim for appointment of a trustee has been abandoned. I think it is tolerably clear that the reference to trustee in sub-paragraph (iii) of the previous paragraph is a reference to the trustee sought to be appointed under s 38 of the Act i.e. the plaintiff was seeking an order that a statutory trustee be appointed for the future sale of the property now owned by Teahah Investments Pty Ltd and that those proceeds be distributed in the way she sought.

[10] Seen in that light, and in circumstances where the claim for appointment of the trustee is now to be abandoned, it appears that the plaintiff's claim in that original proceeding, relevant to consideration of the issue before me, is limited to the claim for "$94,950.00 for moneys advanced to the plaintiff and restitution" set out in sub-paragraph (1) of the prayer for relief.

[11] The circumstance giving rise to that claim are primarily set out in the statement of claim at paragraphs 8, 9, 10, 11, 15 and 18 thereof. The plaintiff's claim can be seen to be distilled into the following relevant assertions:

1. The plaintiff entered into an agreement with the defendants to purchase and renovate a property at Wynnum

2. It was agreed the proceeds of the sale of the property would be equally distributed between the parties

3. The plaintiff has suffered a loss of $95,950.00, being the amount invested into the property (by her, it seems, having regard to the wording of the claim itself namely that such a sum "was advanced to the defendants".)

[12] I've set out my understanding of the facts alleged in the statement of claim in this way because the pleading itself is poorly drafted, and appears to confuse both the facts of the matter and the nature of the plaintiff's remedy. It is unsurprising therefore that the defendants filed only a conditional notice of intention to defend.

[13] On the hearing of the defendants' application to set aside the claim, the plaintiff as I have said sought to rely on an amended claim and amended statement of claim. It was proposed that the whole of the original claim and statement of claim be deleted and entirely new pleadings be substituted.

[14] Before turning to the substance of the amendments, it is important to note the loss the plaintiff claims to have suffered it said to have crystallised on the sale of the property on 2 August 2012, as alleged in paragraph 12 of the proposed amended statement of claim. This was, of course, more than six years prior to the application before me and consequently outside the relevant limitation period. Rule 376 of the UCPR relevantly provides:

"(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

(4) The court may give leave to make an amendment to include a new cause of action only if -

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment."

[15] Against that background it is necessary then to consider the new pleading and to determine whether the new cause of action alleged can be said to arise out of substantially the same facts as a cause of action for which relief had been claimed in the original pleadings.

[16] The new claim is now for a sum of $94,950.00 as:

(ii) A debt for services rendered and money advanced to the defendants for their benefit; and/or

(iii) Damages under s 236 of the Australian Consumer Law (ACL) "for moneys advanced to the defendants and restitution"

[17] The proposed amended statement of claim is again curiously worded but alleges, in essence;

(i) The plaintiff and the first defendant, on behalf of the defendants, entered into an agreement pursuant to which the plaintiff paid to the defendants $95,950.99 between January 2010 and June 2011 and also applied her skill and experience in property renovating and development to enable the refurbishment and renovation of the Wynnum property.

(ii) It was a term of the contract that the property was to be purchased, renovated and resold and that on its resale the plaintiff would receive reimbursement of her financial contributions (ultimately $95,950.99) or 25 per cent of the profits, whichever was the greater.

(iii) That the property was purchased, renovated and resold and after the property's resale on 2 August 2012, resulting in a capital gain of only $180,000.00, neither the plaintiff's financial contribution of $95,950.99 nor any sum, has been repaid to her.

(iv) In the alternative the plaintiff claims that she rendered services for the benefit of the defendants and provided moneys in the sum of $95,950.99 to them for their benefit, and claims the said sum by way of damages for breach of contract and/or for services rendered and money advanced to the defendants for their benefit.

[18] It is further alleged that the plaintiff engaged in misleading and deceptive conduct in trade or commerce in breach of s 18 of the Australian Consumer Law (ACL) and/or made representations about "future matters" within the meaning of s 4 of the Act when lacking reasonable grounds for making them. It is alleged the plaintiff is thereby entitled to damages pursuant to s 236 of the ACL.

[19] The plaintiff also alleges in the proposed amended statement of claim that the plaintiff trusted the defendants and had no independent advice such that it would be conscionable for the defendants, who are said to have breached s 20 and 21 of the ACL, to retain the benefit of the sale proceeds.

[20] In my view the plaintiff's reliance and allegations of misleading and deceptive conduct and unconscionable conduct, and the alleged breaches of the ACL, cannot be said to arise out of substantially the same facts as the original claim. As I've sought to demonstrate, and set out in paragraph 9 hereof in particular, the plaintiff's original claim was based on a contractual arrangement which was breached by the plaintiff's failure to recompense her from the sale proceeds in the amount claimed, and/or for claim for money had and received in that sum. The proposed claims under the ACL are very significantly different, relying on allegations of misleading and deceptive conduct, misrepresentation about future conduct and unconscionably taking advantage of the plaintiff. The plaintiff should not now be permitted to raise those matters outside the relevant limitation periods. The additional facts to support those causes of action under the ACL are not part of the "same story told to support the original cause of action" and are not properly said in my view to be merely a "changed focus with a elucidation of additional details" (see Draney v Barry [2002] 1 Qd R 145 at [57]).

[21] The proposed action as set out in paragraphs 1-12 of the proposed amended statement of claim does however arise out of substantially the same facts as the earlier claim set out in paragraphs 1, 2, 3, 4, 8, 9, 10, 11, 15, 17, and 18 of that statement of claim. Indeed, whilst in the prayer for relief in the original claim the plaintiff sought $94.950.99 "for moneys advanced to the plaintiffs and restitution", the facts alleged in the statement of claim might more readily be characterised as a claim for breach of contract such that it could not be said the proposed amended claim and statement of claim raise a new cause of action.

[22] Be that as it may, the claim in my view arises out of substantially the same facts since both the original statement of claim and the proposed amended statement of claim:

(i) Allege an agreement between the plaintiff and the first defendant on behalf of the defendants;

(ii) Allege that agreement related to the purchase, refurbishment and sale of the Wynnum property;

(iii) Allege that it was agreed the plaintiff was to provide both financial and non-financial contributions;

(iv) Allege that as a result of the arrangement the plaintiff became entitled to be recompensed for her financial contributions;

(v) Allege the plaintiff has received nothing upon the sale of the property.

[23] In my view it is appropriate to give the plaintiff leave to file an amended claim and statement of claim in which those claims for breach of contract and/or for money had and received are enunciated. Because the current proposed claim and statement of claim contain claims that are in my view not properly allowed, and because of the need to more clearly articulate the plaintiff's claim, I will subject to submissions on the form of the order, order:

1. The plaintiff be given leave to file an amended claim and statement of claim to recover $94,950.99 as damages for breach of contract and/or from money had and received, generally in accordance with paragraphs 1-18 of the proposed amended statement of claim.

[24] I might add that the form of claim as currently pleaded remains open to challenge by the defendants. The plaintiff should, before filing and serving the documents ensure the actions - limited in a way that I've ordered - are properly pleaded and particularised.

[25] Subject to submission to the contrary I will order that the plaintiff pay the defendants costs of and incidental to the application to be assessed on the standard basis.