Andrew Graham Gould v Christine Jane Gould [1995] ACTSC 51 (2 June 1995)

SUPREME COURT OF THE ACT

ANDREW GRAHAM GOULD v. CHRISTINE JANE GOULD
No. SC678 of 1994 Number of pages - 2
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Practice and Procedure - Summary Judgment for Defendant - Statement of Claim - No cause of action - Containing matter proper for reply - Struck out - Leave to amend - Application for summary judgment dismissed.

Saunders v Anglia Building Society [1970] UKHL 5; (1971) AC 1004
Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355

HEARING

CANBERRA, 24 February 1995
2:6:1995

Counsel for the Plaintiff/Respondent: Mr C.P. McKeown

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant/Applicant: Mr K. Crispin QC

Instructing Solicitors: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:
1. The defendant's application for summary judgment be dismissed.

2. The Statement of Claim be struck out.

3. Leave be granted to the plaintiff to amend the Statement of Claim as he may be advised, within 14 days.

4. The plaintiff bear the costs of an consequential upon the amendment of the Statement of Claim.

5. There be no order as to the costs of the Notice of Motion.

DECISION

MASTER A HOGAN This is an application for summary judgment made by a defendant in an action commenced by writ of summons on 7 October 1994. The writ was accompanied by a statement of claim.

2. The allegations in the statement of claim may be summarised as follows:

3. The male plaintiff and the female defendant began to live together in 1974. Neither party then had any significant assets. Over a period of time they pooled their income, and property was purchased in Giralang, Perth and Mitchell, and shares were purchased in a company called Timeland, of which the plaintiff was managing director. In May 1990 the plaintiff and the defendant ceased cohabitation. That same month they each executed a deed, by the terms of which the plaintiff transferred to the defendant his shareholding in Timeland and his interest in the property at Mitchell and Giralang. With the consent of the defendant the plaintiff withdrew $20,000 from Timeland, and the Perth property was sold, the defendant receiving $2,500 and the plaintiff $22,000. The defendant had organised the preparation of the deed. At the time of its execution the plaintiff was experiencing emotional distress. He did not read the deed before signing it. He also signed another document without knowing what it was. He did not understand or appreciate the significance of the terms of the documents which he signed.

4. The plaintiff sought declarations that the defendant held her interest in the Giralang and Mitchell properties and in Timeland upon a number of alternative trusts for the benefit of the plaintiff.

5. I agree with the submissions of counsel for the defendant that the statement of claim does not disclose facts that would entitle the plaintiff to the relief claimed. That is for two reasons.

6. The first is that the facts alleged about the circumstances surrounding the execution of the deed would not support a plea of non est factum. See Saunders v Anglia Building Society [1970] UKHL 5; (1971) AC 1004; Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355. It may well be that the plaintiff would have been better advised to allow the defendant to have pleaded the deed, and to have raised the facts which would avoid its effects in the reply. But in any event the facts pleaded do not have that effect.

7. The second is that the facts alleged are not sufficient to raise a trust. Neither counsel referred me to any decisions upon this point, and in the view that I take of the case generally I have not thought it necessary to conduct my own researches. I simply note that there is no allegation that at any time the parties or either of them formed any express intention to create a trust, nor that such an intention should be inferred from the facts that are alleged.

8. Nevertheless in my opinion this application cannot succeed. The defendant has sought the wrong relief. The defendant has sought to rely upon evidence about the relationship between the parties, which might be relevant upon the hearing of the action if it were properly constituted. I am not prepared to hold, even taking that evidence into account, that it would not be possible for the plaintiff to allege and prove some cause of action. All that I can say with confidence is that the plaintiff cannot succeed on the case as presently pleaded.

9. In the circumstances I regard the action as being before me for directions, pursuant to Order 33 rule 1(2). I order that the statement of claim be struck out. I grant leave to the plaintiff to file an amended statement of claim as he may be advised within 14 days. I order the plaintiff to bear the costs of and consequential upon the amendment. I do not think that either party should be liable to the other for the costs of this application. I therefore make no order as to the costs of this notice of motion.