Anthony Gilbert Martin v Nrma Insurance Ltd [1998] ACTSC 237 (12 June 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   Appeal against Interlocutory
Judgment of the Master - nature of the appeal.

  

   Statement of Claim - purported amendment - whether leave required -
paragraphs
struck out - fresh claims statute barred - other allegations
irrelevant and/or embarrassing.

  

   Trade Practices Act 1974 (Cth)

   Fair Trading Act 1992 (ACT)

   Supreme Court Act 1933

  

   Weldon v Neil [1887] 19 QB 394

   Rothwells Ltd (In Liquidation) v Entity Group Ltd and Ors (1990) 101 FLR
460 at 462


  Protonotarios v Zapasnik (unreported, SCACT, 5 March 1992)

   Quirk v Bawden (1992) 107 FLR 455 at 456

   I n The Matter of an
Application by Milos Milosevic (unreported, SCACT, 13
September 1996)

   Anutech Pty Ltd v Latent Energy Systems Pty Ltd (unreported,
SCACT, 3
February 1997)

   House v The King [1936] HCA 40;  (1936) 55 CLR 499

   Gronow v Gronow [1979] HCA 63;  (1979) 144 CLR 513

   Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409

  

  

   CANBERRA, 16 April 1998 (hearing), 12
June 1998 (decision)

   #DATE 12:6:1998

  

   Mr A G Martin appearing for himself.

   Counsel for the Defendant: Mr R J Weber

   Instructing Solicitors: Abbot Tout Harper & Blain

  

  

   THE COURT ORDERS THAT:

  

   1. The appeal against the judgment
of the Master given on 14 November 1997
is dismissed.

  

  

   CRISPIN J

  

   1. This is an appeal by the plaintiff against
decisions of the Master
striking out extensive portions of a document purporting to be an Amended
Statement of and dismissing the
plaintiff's application for summary judgment.

  

   2. The proceedings have apparently been permitted to languish for long
periods
punctuated by brief episodes of activity. The original Statement of
Claim was filed on behalf of Individual Homes Pty Ltd on 1 August
1988. It
pleaded, in relatively succinct terms, an action for breach of duty by the
defendant in relation to the exercise of its
power of sale in relation to
certain home units which had been constructed by the plaintiff and mortgaged
to the defendant. It was
alleged that on or about 27 July 1988 the defendant,
in the exercise of that power of sale, had agreed to sell the units for the
sum of $825,000 but that the market value was in excess of $1,400,000. The
particulars of breach also included allegations relating
to the marketing and
advertising of the units for sale, in the maintenance of the units whilst the
defendant was a mortgagee in possession
and management of the tenancies.
Orders were sought restraining completion of the sale and setting aside the
agreement. There was
also a claim for damages.

  

   3. The Statement of Claim, filed only a few days after the agreement in
question, heralded a flurry
of activity. A Notice of Motion was filed on the
same day seeking to restrain the defendant from entering into a contract for
sale
of the units and a number of affidavits were filed during the next few
days. The motion was heard by Miles CJ on 5 August 1988 but
dismissed. An
appearance was entered on 10 August 1988 and a defence was filed later that
month. The pace then slowed though further
and better particulars of the claim
were apparently provided in November and a further Notice of Motion was
subsequently filed.

  

   4. On 27 June 1989 Gallop J ordered the plaintiff to give security for
costs in the sum of $21,750 and stayed the action pending
the provision of
that security. The Master found that no such security was ever provided.
Indeed, no further steps were apparently
taken in relation to the matter for
several years.

  

   5. However, interest in the matter was apparently rekindled and on 18
September 1992, Miles CJ gave the present plaintiff leave to appear on behalf
of Individual Homes Pty Ltd and to be added as a second
plaintiff. Despite
this promising intervention several further years were then allowed to lapse
before any further step was taken.

  

   6. On 21 March 1997 the Master gave Individual Homes Pty Ltd leave to
withdraw from the proceedings and on 18 April 1997
the Master heard an
application to dismiss the proceedings for want of prosecution. He dismissed
the action by the company but declined
to dismiss the action by the present
plaintiff.

  

   7. The defendant subsequently wrote to the plaintiff suggesting that it
might
be appropriate for him to amend paragraph 10 of the Statement of Claim
in order to reflect any assignment of the rights of Individual
Homes Pty Ltd
which he contended entitled him to maintain the action on his own behalf. The
letter stated that the defendant would
consent to the Statement of Claim being
amended for that purpose.

  

   8. On 22 September 1997 the plaintiff responded by lodging
at the Registry
a document which purported to be an amended Statement of Claim. This documents
consisted of 112 paragraphs and adverted
to additional causes of action
including claims for breaches of the Trade Practices Act 1974 (Cth) and the
Fair Trading Act 1992 (ACT) , personal injuries to the plaintiff and members
of his family and defamation of the plaintiff, his wife and Individual Homes
Pty Ltd. The document did not contain any endorsement of the kind required by
Order 32 Rule 10 specifying the date of any order pursuant to which the
amendment was made or the rule otherwise authorising such amendment. More
importantly, since the pleadings had closed, the plaintiff needed leave to
make any such amendment and that leave had not been granted.
Furthermore,
whilst the defendant had indicated that it would consent to an amendment for
the limited purpose of pleading an assignment
of the rights of Individual
Homes Pty Ltd to the present plaintiff, it did not consent to the the
plaintiff having carte blanche
to amend the Statement of Claim in any manner
he saw fit.

  

   9. In these circumstances, the appellant had no right to amend
the
Statement of Claim in the manner set out in the document described "Amended
Statement of Claim". Consequently, whilst that document
may have been accepted
in the Registry and served upon the defendant it did not validly effect any
amendment to the Statement of
Claim. The filing of a further pleading of this
nature in these circumstances amounted, in my view, to an abuse of process and
the
defendant was entitled to have it struck out ex debito justitiae.

  

   10. In fact, the defendant filed a Notice of Motion seeking
to have struck
out only those portions of the document which involved purported amendments
beyond those to which it was willing to
consent. The paragraphs so challenged
were set out in a schedule and during the course of the proceedings the Master
granted the
defendant leave to add further paragraphs to that schedule. The
Master ultimately struck out paragraphs numbered 2-3, 11-14, 18,
20, 24, 26,
28-32, 34-45, 50-66, 70-78, 80-103, that part of paragraph 104 consisting of
the phrase "and/or the plaintiff and/or
the Martins" and subparagraph (a),
that part of paragraph 105 consisting of the phrase "and/or the Martins", and
paragraphs 106-112.

  

   11. Whilst the extempore judgment did not recount the Master's reasons in
great detail, he clearly adopted the principle
in Weldon v Neil [1887] 19 QB
394 that leave should not be given to allow a plaintiff to amend his statement
of claim in order to
introduce claims that would otherwise be statute barred.
The causes of action which the document sought to introduce fell into this
category. He also held that other allegations were irrelevant to the original
claim or otherwise embarrassing.

  

   12. The plaintiff's
application for summary judgment was dismissed on the
basis that extensive portions of the Amended Statement of Claim had been
struck
out and it was appropriate to permit the defendant time to file a
defence to the remainder.

  

   13. Appeals from decisions of
the Master are governed by section 9 of the
Supreme Court Act 1933 which is in the following terms:

  

  

   "(1) For the purposes of the exercise of jurisdiction conferred on the
Master by Rules
of Court, this Act has effect, subject to this section, as if
the court consisted of the Judges and the Master. (2) A person who
is
dissatisfied with the judgment of a Master made in the exercise of
jurisdiction conferred by Rules of Court may appeal, as prescribed
by the
Rules of Court: (a) in the case of an interlocutory judgment - to the Court
constituted by a single Judge; and (b) in the
case of any other judgment - to
the Full Court. (3) On an appeal under subsection (2), the Court: (a) shall
have regard to the evidence
given in the proceedings out of which the appeal
arose; and (b) has power; (i) to draw inferences of facts; and (ii) in its
discretion,
to receive further evidence, . . . (4) On an appeal under
subsection (2), the Court may affirm, vary or set aside the judgment of
the
Master and may make such order as in all the circumstances it considers just."

   14. The nature of an appeal from the interlocutory
judgment of the Master
has previously been considered by this Court. In my view, it is clear that
such an appeal is an appeal by
way of re-hearing rather than an appeal stricto
sensu or an appeal by way of a hearing de novo: Rothwells Ltd (In Liquidation)
v
Entity Group Ltd and Ors (1990) 101 FLR 460 at 462; Protonotarios v Zapasnik
(unreported, SCACT, 5 March 1992); Quirk v Bawden (1992)
107 FLR 455 at 456; I
n The Matter of an Application by Milos Milosevic (unreported, SCACT, 13
September 1996); Anutech Pty Ltd v
Latent Energy Systems Pty Ltd (unreported,
SCACT, 3 February 1997). It is true in Rothwells Ltd (In Liquidation) v Entity
Group Ltd
and Ors Higgins J, at 462, expressed the view that the principles
concerning appeals from discretionary judgments as stated in House
v The King [1936] HCA 40; 
(1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63;  (1979) 144 CLR 513 and Do Carmo v Ford
Excavations Pty Ltd [1981] 1 NSWLR 409 have no application to an appeal of
that kind. However,
a contrary view was expressed by Hogan AJ I n The Matter
of an Application by Milos Milosevic at 5 and Gallop J in Anutech Pty Ltd
v
Latent Energy Systems Pty Ltd at 5. It is clear that the jurisdiction of the
Master is not delegated from a Judge; it is the jurisdiction
of the Court
itself. There is nothing in the terms of section 9 to suggest that any appeal
from the Master should be different in character from other appeals by way of
re-hearing or that the normal
principles governing appeals from discretionary
judgment should not apply. Nor is there anything to suggest that such
principles
do not extend to appeals from discretionary judgments of the
Master. Section 9 distinguishes between appeals from interlocutory judgments
and appeals from other judgments only in providing that the former may
be
heard by the Court constituted by a single judge whilst the latter must be
heard by the Full Court. The section provides no support
for any suggestion
that different principles should be applied. Accordingly, I accept that the
principles referred to in House v
The King do apply to appeals of this kind.

  

   15. There was some disagreement between the parties as to the basis upon
which
the proceedings before the Master had been determined. Mr Weber, who
appeared for the defendant, maintained that the motion had been
argued on the
basis that the challenged portions of the "Amended Statement of Claim" should
be struck out unless the plaintiff could
demonstrate that leave should be
granted for the Statement of Claim to be amended in those terms. Hence, the
proceedings "were in
reality a vehicle pursuant to which the capacity of the
plaintiff to obtain leave to amend the Statement of Claim in those matters
in
respect of which the defendant did not consent was litigated". He submitted
that, technically, leave to amend in terms of the
residual document, was still
required but conceded that the decision of the Master should be taken to
involve an implied leave to
amend the Statement of Claim in accordance with
the remaining terms of the document.

  

   16. In answer to this contention the
plaintiff, who appeared in person,
contended, the Master had determined this issue when it was raised at the
start of the hearing
before him, ruling "that if leave was required the said
leave was given before proceeding on hearing the strike out application".
Despite these competing contentions, no transcript of the proceedings prior to
the Master's judgment was tendered. There is no reference
in the Master's
judgment to any order granting the plaintiff leave to make the amendments set
out in the 'Amended Statement of Claim'.
In my view it would have been
inappropriate for such leave to have been given prior to argument as to the
nature of the amendments.
Furthermore, the reference to the principle in
Weldon v Neil suggests that, in essence, the Master was refusing the plaintiff
leave
to amend by the inclusion of the disputed paragraphs.

  

   17. The plaintiff also maintained that leave was not necessary since,
he
maintained, the pleadings had not been closed. He submitted that the document
entitled Amended Statement of Claim was "the first
and only pleading of the
current plaintiff". Of course, that document was dated 22 September 1997 and
if it were to be regarded as
an original pleading then all of the causes of
action pleaded would be statute barred. However, it is clear that the document
reflects
an attempt to amend the original Statement of Claim issued in 1988.
The pleadings have long since closed and there is no doubt that
leave was
required.

  

   18. The plaintiff also relied upon Order 23 Rule 27 which provides that no
technical objection shall be raised to any pleading on the ground of any
alleged want of form. Whilst that
rule might provide some comfort for the
plaintiff if the only objection was that the relevant notation had been
omitted from the
document, it does not enable a party to amend pleadings
without leave.

  

   19. Similarly, he relied upon section 60 of the Supreme Court Act . That
section is in the following terms:

  

  

   "(1) No proceedings in the Court shall be invalidated by any formal defect
or by any irregularity, unless the Court is of opinion that substantial
injustice has been caused thereby and that the injustice
cannot be remedied by
an order of the Court. (2) The Court may make an order declaring that any
proceeding is valid notwithstanding
any such defect or irregularity."

   20. In the present case, of course, the issue is not whether the
proceedings are valid but
whether the ambit of those proceedings may be
extended by a party who seeks to amend his pleadings other than in accordance
with
the Rules of Court.

  

   21. It is clear, in my view, that the plaintiff required leave to amend the
Statement of Claim and that
leave had not been given prior to the hearing
before the Master to which this appeal relates. The plaintiff may have not
been aware
of the need for that leave and it may have been preferable for the
proceedings to have been adjourned to enable him to file an appropriate
notice
of motion and, more importantly, any affidavits that may have been relevant to
the issue of whether leave should be granted.
However, no point has been taken
about that issue and the challenges which the defendant made to the proposed
amendments did not
raise discretionary considerations of a kind likely to be
influenced by evidence as to facts other than those, such as the dates
of the
pleadings, which are part of the record.

  

   22. The plaintiff did not rely upon any irregularity in the manner in which
the proceedings before the Master were conducted but maintained that the
"Amended Statement of Claim" was a valid pleading which
should have been
allowed to stand without any paragraphs being struck out. He also maintained
that he had been entitled to summary
judgment.

  

   23. The Notice of Appeal did not contain any grounds but Mr Weber took no
point about its deficiency and the plaintiff
was permitted to make an
extensive and discursive address as to the grounds upon which he relied. When
it became apparent that the
matter could not be completed in the one day
allocated for it I suggested that both sides proceed by way of written
submissions.
Furthermore, since the plaintiff was unrepresented and some legal
issues were raised by the appeal it seemed preferable for Mr Weber
to file his
submissions first, and for the plaintiff to then prepare his submissions in
the knowledge of the legal issues that he
might have to address. The parties
consented to proceed in this manner. However, at the end of the plaintiff's
written submissions
he indicated that he wished to make further submissions
orally. Given the manner in which the proceedings had been conducted and
the
fact that he had already had an opportunity to develop his arguments both
orally and in writing I declined to reopen the matter
for that purpose.

  

   24. Having regard to the view which I have formed of the paragraphs which
the Master struck out, it is
immaterial whether the Master did so on the basis
of refusing the plaintiff leave to amend in those terms or whether having
given
leave to amend in blanket form he struck them out of a then subsisting
pleading. In either event they were unsustainable.

  

 
 25. Paragraph 2 is irrelevant.

  

   26. Paragraph 3 asserts that the plaintiff sues not only on his own behalf
but that of his
wife and children. Whilst it may be possible for those people
to be joined in the same action as the plaintiffs pursuant to Order
19 rule 1,
rule 10 enables a person to sue on behalf of other interested persons only
where "there are numerous persons having the same interest in
the same cause
or matter". In my view, the plaintiff, his wife and their two children do not
satisfy the description "numerous persons".
Furthermore, the order made by
Miles CJ on 18 September 1992 that the plaintiff be joined as a party to the
proceedings did not authorise
him to sue in a representative capacity for the
other members of his family. If it is to be contended that the plaintiff's
wife and
children are necessary parties because the right to maintain the
initial claim against the defendant has been assigned to them as
well as the
plaintiff, then it is open for them to apply to be joined as plaintiffs. Of
course, any such application would have to
be determined on its merits.
However, the plaintiff cannot incorporate them in the proceedings by the
simple expedient of purporting
to sue on their behalf as well as his own.

  

   27. Paragraph 11 asserts that at the time of the winding up order of
Individual
Homes Pty Ltd "the Martins" were a substantial creditor. That
statement is not relevant to any cause of action pleaded.

  

   28.
Paragraphs 12 and 13 refer to earlier pleadings. They are not relevant.

  

   29. Paragraph 14 asserts that on 17 August 1992 Individual
Homes Pty Ltd
assigned its rights over "Solar Village" to the plaintiff. It is apparent from
the terms of paragraph 21 that "Solar
Village" was the name given to the home
units which were mortgaged to the defendant and sold pursuant to its power of
sale. The plaintiff
presumably alleges some form of assignment sufficient to
enable him to maintain the action for damages initially brought by the
company.
However, paragraph 16 asserts that on 31 December 1992 "Individual
Homes Pty Ltd and the plaintiff's rights over Solar Village were
assigned in
writing to the Martins". If the rights of Individual Homes Pty Ltd had
previously been assigned to the plaintiff then
the company had no continuing
rights of the Village which were so assignable in December 1992. Of course, it
is possible that paragraph
16 is intended to convey the allegation that the
plaintiff conveyed to himself and his family jointly rights over Solar Village
which
had previously been assigned to him by Individual Homes Pty Ltd. However
this is unclear. It is also possible that the plaintiff
meant to plead
paragraphs 14 and 16 in the alternative but again, this is not clear. Nor, in
my view, is the substance of the allegation
clear. It seems clear from
subsequent paragraphs that the plaintiff concedes that the sale of the units
had been completed well before
1992 if that is so then the company had no
rights over them to assign. In my view, the paragraph was rightly struck out.
However,
it remains open to the plaintiff to apply for leave to further amend
the Statement of Claim in order to allege an assignment of the
company's
rights to maintain the action against the defendant. Indeed, as previously
mentioned, the defendant indicated that it would
consent to an amendment for
that purpose.

  

   30. Paragraphs 18, 20, 24 and 26 contain allegations which are not relevant
to
any apparent cause of action.

  

   31. Paragraphs 28 and 29 assert that the terms and conditions incorporated
in the mortgage
were at variance with those contained in a letter of offer and
that they were so incorporated "to disposess Individual Homes Pty
Ltd of Solar
Village". As an apparent consequence, it is alleged in paragraph 30 that the
mortgage is null and void. These paragraphs
do not, in my view, adequately
articulate any cause of action. Any claim that the mortgage was void would be
inconsistent with the
cause of action pleaded in the original claim and, since
the mortgage was discharged nearly 10 years ago, any fresh claim for damages
would be statute barred.

  

   32. Paragraphs 31 and 32 allege that a personal guarantee apparently given
by the plaintiff and
his wife was void. Both contentions seem irrelevant to
any cause of action.

  

   33. Paragraphs 34 to 37 refer to statements about
future interest payments
to be made by the defendant in 1985 and 1987 and an assertion that the
defendant unsuccessfully attempted
to take possession of the units in late
1985. Again, these allegations appear to be irrelevant to any cause of action.

  

   34.
Paragraphs 38 and 39 assert that on 6 August 1986 the plaintiff
suffered a serious heart attack "brought on by the unconscionable
conduct of
the defendant" and subsequently developed serious health problems. The
unconscionable conduct is not particularised and
no other facts which might
support a claim for personal injury are alleged. Furthermore, the heart attack
is said to have occurred
almost 12 years ago and any claim for its causation
would now be statute barred.

  

   35. Paragraphs 40 to 45 and 50 to 60 contain
numerous assertions which do
not seem to form part of any recognisable cause of action. They are at best
irrelevant and at worst
embarrassing.

  

   36. Paragraph 61 contains assertions about the quality of the units and
their contents. It also alleges that
furnishings and fittings contained in six
of the units were not the subject of any mortgage to the defendant but that
they were not
returned to Individual Homes Pty Ltd and no credit of their
value was given. It is not clear whether this was intended to plead an
action
in conversion but any such cause of action would now be statute barred.

  

   37. Paragraph 62 alleges interference with
the sale and management of the
units by Individual Homes Pty prior to the defendant entering into possession.
It does not adequately
plead any cause of action and even if it did the claim
would now be statute barred.

  

   38. Paragraphs 63, 64 and 65 contain
allegations which may be intended to
give rise to a fresh cause of action or may be intended to simply provide more
detailed particulars
of the allegations contained in sub-paragraphs 10(b) or
(c) of the original Statement of Claim. Any fresh cause of action would be
statute barred. The paragraphs are embarrassing and in my view were rightly
struck out.

  

   39. Paragraphs 66, 70 to 78 and 80
to 83 contain various assertions in
relation to a company named Jundery Pty Ltd. In essence, it is alleged that
the directors and
secretary of the company were agents of the defendant, that
the units were purchased by Jundery Pty Ltd following a sham public auction,
that each of the units were transferred by the defendant to individual
purchasers via a sham transfer through Jundery Pty Ltd and
that the defendant
thereby made a profit of about $300,000. It is clear that the plaintiff
alleges that the defendant was guilty
of a breach of its duty as mortgagee
exercising a power of sale but unclear as to what other causes of action may
be relied upon.
If there is evidence to support these allegations it may prove
to be of relevance to the existing claim for breach of duty. However,
prima
facie, any further cause or causes of action would now be statute barred. The
paragraphs are in my view embarrassing.

  

   40. Paragraphs 84 to 90 refer to various steps taken in relation to the
proceedings. They are not relevant to any cause of action.

  

   41. Paragraph 91 appears to allege defamation and/or injurious falsehood
concerning Individual Homes Pty Ltd, the plaintiff
and his wife. Quite apart
from any difficulties about the plaintiff suing on behalf of the company or
his wife, the allegations go
back to December 1987 and would appear to be
statute barred. In any event, the relevant facts are not pleaded with
sufficient particularity.

  

   42. Paragraphs 92, 93 and 94 contain allegations concerning the manner in
which the plaintiff had previously conducted his
business and alleges that his
commercial viability and reputation had been destroyed by the defendant's
actions. Again, these paragraphs
do not contain any clearly articulated cause
of action and any claim of the kind suggested would now be statute barred.

  

   43.
Paragraphs 95 to 98 contain allegations that the defendant's actions
since 3 December 1984 have led to adverse consequences for Individual
Homes
Pty Ltd and/or the plaintiff and his family No cause of action pleaded in the
original Statement of Claim related to the defendant's
actions going back to 3
December 1984 and it is unclear what actions the plaintiff contends were
responsible for the losses alleged.
In any event, the paragraphs do not
clearly articulate any fresh causes of action and even if they did any such
claims would now
be statute barred.

  

   44. Paragraphs 99 to 103 contain allegations that the defendant's actions
since 3 December 1984 have caused
serious trauma and/or health problems to the
plaintiff and his family. As previously mentioned the plaintiff is not
entitled to sue
on behalf of other members of his family. Furthermore, these
paragraphs again fail to adequately plead any recognisable causes of
action
and, again, any such claims would appear to be statute barred.

  

   45. Paragraph 104 substantially reproduces allegations
contained in the
original Statement of Claim but adds the words "and/or the plaintiff and/or
the Martins" after the words "Individual
Homes Pty Ltd" and the allegation
that the duty of the defendant extended to not acting "in an unconscionable
way, in a deceptive
or misleading way or a way likely to be deceptive or to
mislead". No cause of action has previously been pleaded which involves any
alleged breach of duty to the plaintiff or members of his family. The
paragraph contains no hint as to any facts and circumstances
which might
support the proposition that the defendant, as a mortgagee exercising a power
of sale, owed a duty to them in addition
to the mortgagor. Furthermore, any
such claim would now be statute barred. Similarly, no cause of action based
upon unconscionable,
deceptive or misleading conduct has previously been
pleaded and, at face value, any such claim would again be statute barred.

 


   46. Paragraph 105 repeats the allegation that the defendant breached its
duty not only to Individual Homes Pty Ltd but to the
plaintiff and/or his
family. Again, the factual basis for the assertion of such a duty is not
pleaded. Neither is the nature of the
breach. In any event, any fresh claim
would now be statute barred.

  

   47. Paragraphs 106 to 109 plead various causes of action
based upon the
Trades Practices Act 1974 (Cth) . Quite apart from any other difficulties that
arise in relation to these paragraphs
it is clear that any such cause of
action has long been statute barred.

  

   48. Paragraphs 110 to 112 allege somewhat similar
causes of action under
the Fair Trading Act 1992. The events in relation to which these causes of
action are said to have arisen occurred prior to the enactment of this
statute.

  

   49. In short, I am not satisfied that the Master fell into error in
refusing leave for the plaintiff to amend his Statement
of Claim by inclusion
of the paragraphs to which I have referred or by striking out those
paragraphs. On the contrary, I am satisfied
that the document was an entirely
unsatisfactory pleading which would have given rise to significant potential
for embarrassment
and confusion.

  

   50. Indeed, I am left with the firm impression that even when these
paragraphs have been exercised the Amended
Statement of Claim will still be a
quite unsatisfactory pleading. It is at least implicit in the Master's
judgment that leave has
been given to amend in accordance with those
paragraphs of the amended Statement of Claim which have not been struck out.
However
in my view it is appropriate that the matter be listed for further
directions before the Master when the plaintiff has had the opportunity
to
consider his position.

  

   51. The application for summary judgment was sought on the basis of the
"Amended Statement of Claim"
but at the time the application was filed leave
had not been given for the Statement of Claim to be amended. Accordingly, the
application
was without legal foundation.

  

   52. The appeal must be dismissed.