Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Hearing dates: 15 September 2014 Decision date: 02 December 2014 Before: Beazley P at [1]; Barrett JA at [2]; Gleeson JA at [4] Decision: 1. Appeal allowed in part, as against the first respondent. 2. Set aside order 1 made by Hammerschlag J on 15 November 2013 insofar as it relates to the first respondent. 3. Grant leave to the appellant to amend the statement of claim as against the first respondent in the form of the draft amended statement of claim dated 31 October 2013. 4. Direct the appellant to file and serve the amended statement of claim against the first respondent within seven (7) days. 5. The appellant's costs in this Court as against the first respondent shall be the plaintiff's costs in the proceedings below. 6. Appeal dismissed, as against the second and third respondents. 7. The appellant to pay the second and third respondents' costs in this Court. 8. The appellant, if otherwise qualified, shall have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal as against the first respondent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - Whether primary judge erred in considering delay and prejudice - Whether primary judge erred in refusing to permit cross-examination during interlocutory proceedings - Courts must have regard to the overriding purpose of facilitating the just, quick, and cheap resolution of the real issues in proceedings APPEAL - Summary dismissal - Whether the primary judge erred in summarily dismissing the application to amend - Whether the claims were so obviously untenable or groundless that there was 'a high degree of certainty' that they would fail if allowed to go to trial - Assessment must be made taking the plaintiff's case at its highest PRACTICE AND PROCEDURE - Pleadings - Leave to amend statement of claim refused by primary judge - Whether primary judge erred in concluding that the proposed amendments were inadequate - Whether proposed amendments sufficiently pleaded fraud or a personal equity against the second and third defendants - Claim of knowing receipt or knowing assistance under first and second limb Barnes v Addy - Claim that second and third defendants were "primary wrongdoers" - Allegations must be expressly pleaded and sufficiently particularised PRACTICE AND PROCEDURE - Pleadings - Fraud exception to a claim of indefeasibility - Fraud must be specifically and clearly pleaded - Particulars of fraud must be given under UCPR r15.3 - Whether proposed amendments sufficiently pleaded fraud - Personal equities arising under Barnes v Addy cannot prevail against indefeasibility under s 42 Real Property Act - Personal equity requires there to be some form of acknowledgment, agreement, or undertaking in regards to the unregistered interest from which the registered proprietor later resiles Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 64 Real Property Act 1900 (NSW) s 42 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW) r 15.3, 15.4 Western Lands Act 1901 (NSW) Protected Estates Act 1983 (NSW) Cases Cited: Agar v Hyde [2000] HCA 41; 201 CLR 552 Agius v New South Wales [2001] NSWCA 371 Baden v Sociéte Générale pour Favoriser le Développement du Commerce et de l'lndustrie en France SA [1993] 1 WLR 509 Bahr v Nicolay [No 2] [1988] HCA 16; 164 CLR 604 Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2006] 1 All ER 333 Barnes v Addy (1874) LR 9 Ch App 244 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] 1 Ch 250 Bott v Carter [2012] NSWCA 89 Breskvar v Wall (1971) 126 CLR 376 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; 247 CLR 149 Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268 Consul Development Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; 132 CLR 373 Farah Construction Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Frazer v Walker [1967] 1 AC 569 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; 200 FCR 296 H 1976 Nominees Pty Ltd v Galli [1979] FCA 114; 40 FLR 242 Hancock Family Memorial Foundation Ltd v Porteous [1999] WASC 55; 32 ACSR 124 Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266 Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd [2003] NSWSC 851; 59 NSWLR 312 House v The King [1936] HCA 40; 55 CLR 499 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 LHK Nominees Pty Ltd v Kenworthy [2002] WASCA 291; 26 WAR 517 Kalls Enterprises Pty Ltd (in liq) v Balaglow [2007] NSWCA 191; 63 ACSR 557 New Cap Reinsurance Corporation Ltd v General Cologne Re Australia Ltd [2004] NSWSC 781 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 Paul Ernest Simmons v Protective Commissioner of New South Wales (aka NSW Trustee & Guardian) [2012] NSWSC 455 Paul Ernest Simmons v NSW Trustee and Guardian [2013] NSWSC 1688 Paul Ernest Simmons v Protective Commissioner of NSW (aka NSW Trustee) [No 2] [2013] NSWSC 1770 Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep) Shaw v State of New South Wales [2012] NSWCA 102 Simmons v Henwood [2013] NSWCA 184 Simmons v Simmons, (Supreme Court (NSW), Equity Division, Windeyer J, 28 September 1993, unrep) Spangaro v Corporate Investment Australia Funds Management Ltd [2003] FCA 1025; 47 ACSR 285 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 Stuart v Kingston [1923] HCA 17; 32 CLR 309 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Westpac Banking Corporation v Bell Group Ltd (In Liq) (No 3) [2012] WASCA 157; 44 WAR 1 Yeshiva Properties No 1 Pty Ltd v Joan Marshall [2005] NSWCA 23 Texts Cited: Jacobs, Law of Trusts (6th ed, 1997, Butterworths) Category: Principal judgment Parties: Paul Ernest Simmons (Appellant) Protective Commissioner of New South Wales (known as New South Wales Trustee and Guardian) (First respondent) Raymond John Henwood (Second respondent) Reginald Joseph Simmons, Sally Catherine Pearce, Pamela Anne Simmons, Daniel Francis Simmons and Helen Maree Simmons as representatives of the Estate of Dorothy Francis Simmons deceased (Third respondent) Representation: Counsel: P E King (Appellant) R Bhalla - submitting appearance (First respondent) J M Ireland (Second respondent) S F Hughes (Third respondent) Solicitors: The Peoples Solicitors Pty Ltd (Appellant) I V Knight, Crown Solicitor (First respondent) Denniston & Day (Second respondent) Boyd House & Partners (Third respondent) File Number(s): 2013/356521 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 1688 Date of Decision: 2013-11-15 00:00:00 Before: Hammerschlag J File Number(s): 2011/79920