Schebella v Schebella[2021] QDC 117

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this matter, the first and second defendants have applied to this Court for orders for disallowance of the amendments made to the statement of claim,^[1] pursuant to the Uniform Civil Procedure Rules 1999 (“UCPR”) r 379 and also for paragraph 26 of the amended statement of claim to be struck out pursuant to UCPR r 171, on the ground of there being no basis in law for the allegation. 
2. [2]
   As originally filed by way of claim and statement of claim, the plaintiff primarily seeks relief against only the first and second defendants. In the pleadings he is identified as the father of the first defendant and father-in-law of the second defendant.^[2] The third defendant, identified as the now deregistered trustee company of the Schebella Family Trust, had as its directors, the first and second defendants.^[3]
3. [3]
   The essence of the claim relates to monies loaned by the plaintiff and his now deceased wife, to the third defendant, in two tranches:

   1. (a)
      First, on or about 19 November 2004, pursuant to what is described as a “Loan Deed”, in an amount of $175,000.^[4] The pleaded provisions of the Loan Deed include that:

      1. The plaintiff and his wife would be granted a tenancy at will of a property acquired by the third defendant earlier in that year, upon payment of a commercial rental;^[5]
      2. The third defendant would pay interest on the monies loaned and keep all applicable financial records;^[6]
      3. The plaintiff and his wife could terminate the arrangement upon 90 days’ notice;^[7] and
   2. (b)
      At paragraph 16 it is pleaded that the second tranche of $50,000 was advanced to the third defendant on 9 August 2007. It will be necessary to return to a more detailed consideration of the circumstances of this second tranche of advancement.
4. [4]
   Subsequently and including by some amendments which are the subject of this application, it is alleged that:

1. (a)
   The property was transferred to the first and second defendants, with them becoming the registered proprietors on 8 January 2010, for consideration stated to be in the sum $430,000;^[8]
2. (b)
   The plaintiff’s wife passed away on 18 March 2018;^[9]
3. (c)
   The third defendant was deregistered, on application lodged by the second defendant on 13 May 2019, which included representations that the company had assets of less than $1,000, no outstanding liabilities and that the first defendant agreed to the deregistration. That deregistration occurred on 17 July 2019;^[10]
4. (d)
   Prior to then, the loan had not been repaid, despite demand made to all three defendants on or about 14 May 2019;^[11]
5. (e)
   On or about 27 July 2019, the first and second defendants contracted to sell the property for $575,000, with settlement occurring on or about 21 August 2019. Upon settlement occurring, on or about 21 August 2019, an amount identified as “surplus funds” in the sum of $174,835.95 was paid into the personal bank account of the first and second defendants;^[12] and
6. (f)
   There has been no repayment made to the plaintiff.^[13]

5. [5]
   The plaintiff’s claims for relief are set out as follows:

“The Plaintiff claims the following relief:

1. $225,000 as a debt due and owing.
2. Further or alternatively, damages in the amount of $225,000.00 for breach of Loan Deed.
3. Further or alternatively, damages in the amount of $225,000.00 for monies had and received.
4. Further or alternatively: -
   1. (a)
      an order that the First and Second Defendant indemnify Blacsky Pty Ltd (ACN 079 291 919) in respect of the Monies Loaned by the Plaintiff;
   2. (b)
      an order pursuant to section 197 of the Corporations Act 2001 that the First and Second Defendant indemnify Blacsky Pty Ltd (ACN 079 291 919) in respect of the Monies Loaned by the Plaintiff;

3. (c)
   an order pursuant to Section 113 of the Trusts Act 1973 that the First and Second Defendant indemnify Blacsky Pty Ltd ACN 079 291 919 in respect of the Monies Loaned by the Plaintiff;

4. (d)
   an order that the First and Second Defendant set aside a fund sufficient to meet such claims.

Further or alternatively, the Plaintiff claims against the Third Defendant: -

5. $225,000 as a debt due and owing.
6. Further or alternatively, damages in the amount of $225,000.00 for breach of Loan Deed.
7. Further or alternatively, damages in the amount of $225,000.00 for monies had and received.

As against all Defendants:

8. Interest pursuant to the Civil Proceedings Act 2011 (Qld).
9. Costs”^[14]

6. [6]
   The causes of action upon which that such relief is premised are identified in the immediately preceding paragraphs of the amended statement of claim, as follows:

“40. In breach of the Loan Deed, Blacsky and/or the First and Second Defendants have failed, refused or neglected to repay the Plaintiff the sum of $225,000.00 plus accrued interest.

41. In the circumstances, by failing to repay the Monies Loaned together with interest, Blacsky and/or the First and Second Defendants remain unjustly enriched by the payments made by the Plaintiff to the extent of $225,000.00 plus accrued interest.
42. In the premises the sum of $225,000.00 plus interest is due and owing to the Plaintiff.
43. In the premises, and by virtue of the Voluntary Deregistration Application, Blacsky as Trustee of the Schebella Family Trust does not have sufficient funds to meet the Plaintiff’s claim for repayment of the Monies Loaned. 
44. In the premises outlined above, the First and Second Defendants:-
    1. (a)
       are liable to the Plaintiff for the Monies Loaned;
    2. (b)
       are estopped from denying that they had taken over the rights and obligation of Blacsky under the Loan Deed;
    3. (c)
       are estopped from asserting that Blacsky is the only party liable to the Plaintiff in respect of the Loan Monies.

45. In the premises:

1. (a)
   the First and Second Defendants have an equitable obligation to indemnify Blacsky in respect of the Monies Loaned and any accrued interest; and
2. (b)
   the Plaintiff is entitled to the indemnity owed to Blacsky by the First and Second Defendants.

46. Further or alternatively:

1. (a)
   the First and Second Defendants have an obligation pursuant to Section 113 of the Trusts Act 1973 to indemnify Blacsky; and
2. (b)
   the Plaintiff is entitled to the indemnity owed to Blacsky by the First and Second Defendants.

47. Further or alternatively:

1. (a)
   the First and Second Defendants are liable to compensate the Plaintiff pursuant to section 197 of the Corporations Act 2001;
2. (b)
   the Plaintiff is entitled to indemnity owed by the First and Second Defendants pursuant to section 197 of the Corporations Act 2001.”^[15]

7. [7]
   The application seeks the following orders:

“1.  That pursuant to Rule 379 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), that the additional allegations, pleaded in the Amended Statement of Claim filed 14 September 2020 (“Amended Statement of Claim”) be disallowed.

2. Further, that pursuant to Rule 171 of the UCPR, and/or alternatively under the inherent power of the Court, paragraph 26 of the Statement of Claim filed 8 August 2019 (“Statement of Claim”), or alternatively, paragraph 26 of the Amended Statement of Claim, be struck out with no liberty for the Plaintiff to replead any allegation in relation to the matters pleaded at paragraph 26 of the Statement of Claim, or alternatively paragraph 26 of the Amended Statement of Claim.
3. In the alternative to paragraph 2 above, pursuant to Rule 161 of the UCPR, and/or alternatively under the inherent power of the Court, the Plaintiff provide further and better particulars of paragraph 26 of the Statement of Claim, or alternatively paragraph 26 of the Amended Statement of Claim.
4. Further, or in the alternative to paragraphs 1 to 3 above, the First and Second Defendants file and serve an Amended Defence to the Amended Statement of Claim 8 days from the date of order of this Application.
5. The Plaintiff pay the costs of and incidental to paragraph 1, and/or 4 of the Application to the First and Second Defendants on the standard basis.
6. Pursuant to Rule 171(2) of the UCPR, the Plaintiff pay the costs of and incidental to paragraphs 2 and/or 3 of the Application to the First and Second Defendants on the indemnity basis.
7. Such further or other order as this Honourable Court deems appropriate.”^[16] 

8. [8]
   There are two primal focal points to the application.  First, pursuant to UCPR r 379 in disallowance of the plaintiff’s amendments to his statement of claim, by which it is contended that he “now pleads numerous new causes of action, including pursuant to the Verdon Agreement”.^[17] And secondly, pursuant to UCPR r 171, for the striking out of paragraph 26 of that statement of claim.  As will become apparent, the application in respect of paragraph 26, is related to the pleading in respect of the “Verdon Agreement” but is premised on a further contention that there is no basis for any allegation of assignment of the contract otherwise alleged between the plaintiff and the third defendant.

Disallowance of amendments?

9. [9]
   Drawing upon observations made in Central Sawmilling No. 1 P/L & Ors v State of Queensland^[18] and Hartnett v Hynes,^[19] as to the discretion available to the Court  pursuant to UCPR r 379 being exercisable in accordance with the principles applying under UCPR rr 375 and 376, particular emphasis is placed upon considerations as to the need for just and expeditious resolution of the real issues in dispute at a minimum of expense, adequate explanation or justification, regard to any prejudice to other parties and satisfaction of UCPR r 376(4) in respect of the addition of any new cause of action.  The applicants contend that:

   1. (a)
      there is lack of clarity in respect of the pleading of the “Verdon Agreement” in that:

      1. material facts are not pleaded, as opposed to mere particularisation that the agreement was “partly written and partly implied by conduct”^[20];
      2. such particulars are vague and “do not give rise to a contract in law, nor indicate an intention to enter into contractual relations”^[21], particularly in respect of:

1. (A)
   purported reliance on post-contractual conduct in the formation of the agreement;^[22] and

2. (B)
   introducing inconsistency as to the amount of rental, so that “[t]here is no basis for the father to rely upon the payment of rent as conduct implying the purported terms of the Verdon Agreement”^[23];

2. (b)
   maintenance of the pleading as to the “Verdon Agreement” would only serve to unnecessarily delay the resolution of the matter due to the lack of clarity as to the relevance of it to the relief that is sought;^[24] and
3. (c)
   otherwise and to the extent to which there are amendments not necessarily related to the “Verdon Agreement”, they should also be disallowed as prejudicing the efficient resolution of the dispute, with particular reference made to the additions of paragraphs 21A, 36D and 31G.^[25]

10. [10]
    More generally, the applicants contend that:

    1. (a)
       There is a lack of relevance in the sense of relating the added pleading as to the Verdon Agreement to any relief which is sought;^[26] 
    2. (b)
       The addition of a cause of action based upon breach of the Verdon Agreement, outside of the applicable limitation period so that justification pursuant to UCPR 376(4) is necessary;^[27] and
    3. (c)
       It is for the respondent to adequately justify the amendments which place them in a prejudicial position.

As to the last point, for the respondent, it is correctly pointed out that to the extent that these amendments are the subject of the application brought pursuant to UCPR r 379, it is for the applicants to satisfy the Court that they should be disallowed, in all or in part.  That submission is premised upon the contention of the respondent’s right to amend pursuant to UCPR r 378, which only applies to “an amendment for which leave of the Court is not required under these rules”, such as is provided for in UCPR r 376 in the case of an amendment adding a cause of action after the expiry of the relevant period of limitation.

11. [11]
    The question as to whether there has been any addition of a cause of action after the expiry of a limitation period, is contested and should be determined in favour of the respondent.  This is because, as he contends:

    1. (a)
       there has been no amendment of the relief sought or the essential bases upon which such relief is sought;^[28]

2. (b)
   the amendments are calculated to relate to and further elucidate his claims for breach of the loan deed (paragraph 40 of the statement of claim)^[29] and for restitution of monies had and received, on the basis of unjust enrichment (paragraph 41 and the relief claimed in paragraph C);^[30] and
3. (c)
   those causes of action are alleged to have arisen on or about 21 August 2019, upon the settlement of the sale of the property and receipt by the applicants of the proceeds or benefit of that sale, without any repayment of the loans made by the respondent or payment to him in respect of any equity he held in respect of that property.

12. [12]
    Such conclusions may also be viewed in an understanding that:

    1. (a)
       Prior to the amendments of the statement of claim, as relevantly pleaded in respect of the same relief, it was to the effect that:

       1. by “Loan Agreement by way of a Deed” entered on 13 November 2004, between the third defendant and the plaintiff and his wife, upon stated terms the plaintiff and his wife advanced the sum of $175,000 on 19 November 2004;^[31]

2. (ii)
   on 9 August 2007, the plaintiff and his wife advanced a further $50,000 and having regard to various records kept, as the third defendant was required to do under the loan agreement, “the Plaintiff obtained an equitable interest in the Property”;^[32]

3. (iii)
   subsequently there was an assignment of the third defendant’s obligations, with the consent of the plaintiff, and transfer of the rights and duties of the third defendant under the loan deed, to the applicants.^[33]

4. (iv)
   on 8 January 2010 the applicants became the registered proprietors of the property by transfer from the third defendant, for the declared consideration of $430,000;^[34]
5. (v)
   from 10 August 2007 until 30 April 2019 and in accordance with the loan deed, the respondent alleges the payment of rent for his tenancy of the property, which until and including payment of a lump sum paid on or about 31 December 2009, was paid to the third defendant, with further lump sums being paid to the applicants in or around November 2015 and August 2017;^[35]
6. (vi)
   on or about 14 May 2019, demand was made of the third defendant and/or the applicants for repayment of the $225,000 loaned,^[36] in circumstances where, by application lodged by the second defendant on 13 May 2019, the third defendant was deregistered on 17 July 2019.^[37]

2. (b)
   By the amendments made in the amended statement of claim and particularly those which were most put in issue upon this application:

1. (i)
   reference is made to a document, referred to as the “Verdon Proposal”, in the context of what is particularised as the further agreement which is “partly written and partly implied by the conduct of the parties” and referred to as the “Verdon Agreement”, “between the plaintiff, first, second and/or third defendant”, on or about 9 August 2007 and relevantly to the effect that upon the further advance of $50,000, all of the monies loaned “Blacsky would transfer the balance of the Monies Loaned into an interest in the Property” and that “the plaintiff and his wife would obtain an equitable interest in the Property”, and that “if the property were sold, the plaintiff would receive Monies Loaned from the sale proceeds of the Property”;^[38]

2. (ii)
   existing assertions in the statement of claim as to the obtaining of “an equitable interest in the Property” have attracted the addition of the words “in accordance with the Verdon Proposal and Verdon Agreement”;^[39]
3. (iii)
   additions are made to paragraph 27 of the statement of claim to, inter alia, contend for payment of sums of rent “calculated in accordance with the Verdon Agreement” and to clarify that such sums were paid to the applicants and specifically to a bank account controlled by them “from on or about 10 January 2012”, in contrast to earlier payments made to a bank account controlled by the third defendant;^[40]

4. (iv)
   to add various contentions including most of those which are referred to in the following added particulars for paragraph 26 of the statement of claim:

“Particulars

The assignment to the First and Second Defendant is implied by the conduct of the First and Second Defendant pleaded at paragraphs 27(ca), 27(d), 27(da), 27(e), 28, 29, 30, 31C, 31G, 31H, 31I, 31J,

31P, 31Q, 31R, 32A, 32B, 32C and 33 herein having regard to the First and Second Defendants knowledge of the Loan Deed, Verdon Proposal, Verdon Agreement and the Monies Loaned and the Plaintiffs conduct pleaded at paragraphs 27(ca), 27(d), 27(da) and 27(e) herein.”^[41] 

13. [13]
    Accordingly, it may be seen that there is no amendment which includes any new cause of action where “a relevant period of limitation, current at the date the proceeding was started, has ended”^[42], so as to engage UCPR r 376(4).  But the amendments do serve to highlight:

    1. (a)
       the centrality of the asserted assignment to the applicants in respect of the third defendant’s contractual obligations to the respondent, in paragraph 26, in respect of the claims made against the applicants for breach of the varied contract and for restitution for their unjust enrichment upon taking the benefit of the proceeds of the sale of the Property without recompense for the respondent’s loans or recognised equitable interest in the property; and 
    2. (b)
       despite the pleading on the basis of “and/or”, the allegation in paragraph 40 of the statement of claim must by necessary implication be made against the third defendant upon an alternative basis and only in the eventuality that what is or may properly be pleaded in respect of any assumption of obligations by the applicants, is not accepted at trial, presumably as the foundation for recovery against the applicants pursuant to the application of s 197 of the Corporations Act 2001. 
14. [14]
    It may be further noted that by amendment made in the amended statement of claim at paragraph 31A, it is alleged that the applicants did not pay the amount of $430,000 to the third defendant “in consideration for the transfer of the property”, as a step towards the respondent’s contention that the contract was not breached until the settlement of the sale of the Property to a separate party and the receipt of the proceeds of that sale, on or about 21 August 2019.  However, it may also be noted that it will be open to the applicants to put in issue any such contentions and to plead any inconsistent case, including as to any earlier accrual of any the respondent’s causes of action and any relevant bar to recovery due to the expiry of any relevant period of limitation of action.  

15. [15]
    Further, it then becomes apparent that it is most convenient to consider the application to strike out paragraph 26 before returning to any of the more specific criticisms of the amendments made by the respondent.  

Should paragraph 26 be struck out?

16. [16]
    For the respondent, reference is made to the observations of Jackson J in Coco v Ord Minnett Ltd,^[43] as to variability in the exercise of discretion pursuant to UCPR r 171, in accordance with the different paragraphs of the rule which may be relevant. In the first instance and in consideration of a contention that a statement of claim discloses no reasonable cause of action, the question will be as stated in the following passage (partly cited for the applicants), from the judgement of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW),^[44] after conducting a review of the case law as to termination of an action:

“There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to O 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action — if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal — is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Vol CXII-9 where he says (1949) 78 CLR, at p 91: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

Otherwise, there was noted to be a more general discretion arising “…where the problem is one of inadequate or inaccurate pleading which has a tendency to prejudice or delay a fair trial…”^[45] and that “…courts are slow to interfere and ordinarily act only where there is some substantial objection or some real embarrassment”.^[46] To similar effect are the following observations of Bowskill J in Equititrust Limited v Tucker and Others (No 2):^[47]

“Where the application to strike out is on the basis of deficiency in the pleading, which may be remedied by re-pleading, the particularly cautious approach warranted in cases of summary dismissal does not apply. A pleading may be deficient, and liable to be struck out (for example on the ground that it has a tendency to prejudice or delay the fair trial of the proceeding) because it fails to fulfil the function of a pleading, which is to identify the issues which require the court’s attention and determination, provide a structure for the proceeding by providing the framework for disclosure and admissibility of evidence at trial, and to ensure a fair trial by giving the other parties fair notice of the case they must meet. The function of a pleading is discharged “when the case is presented with reasonable clearness”. Conversely, a pleading will be deficient if it is “ambiguous, vague or too general”, such that the other party does not know what is alleged against them.” (citations omitted)

17. [17]
    The main issue in relation to paragraph 26 is in respect of the allegation of an assignment of the burden of the contract.  The submissions of each of the respective parties make reference to the following passage in the leading judgment of Lord Browne-Wilkinson in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd^[48] (“Linden Gardens”):

“It is trite law that it is, in any event, impossible to assign ‘the contract’ as a whole, i.e. including both burden and benefit.  The burden of a contract can never be assigned without the consent of the other party to the contract in which event such consent will give rise to a novation.”

For the respondent, reference is also made to the following observations of Collins MR in Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd^[49]:

“It is, I think, quite clear that neither at law nor in equity could the burden of a contract be shifted off the shoulders of a contractor onto those of another without the consent of the contractee.  A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to someone else: this can only be brought about by the consent of all three, and involves release of the original debtor.”

18. [18]
    For the applicants, reference is also made to Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd,^[50] where in the context of review of established principle relating to “assignable contractual rights”, the following is noted:

“ …. Seventhly, a third party may become a “substituted contracting party” by novation of the original contract. Novation will, ordinarily, require the agreement of the original and the substituted party although the original contract itself may, on its proper construction, authorise a party to substitute a contracting party in its place without need for a further tri-partite agreement: see Harry v Fidelity Nominees Pty Ltd (1985) 41 SASR 458 at 460. On novation, though, there is no assignment of rights and obligations, but rather the creation of new rights and obligations in a new contract: Olsson v Dyson (1969) 120 CLR 365 at 388; Cheshire & Fifoot’s Law of Contract, above, [8.45] ff. Eighthly, a contractual obligation cannot be assigned without the consent of the other contracting party: Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 at 668. This, for practical purposes, requires novation of the original contract; Furmston, “The Assignment of Contractual Burdens” (1998) 13 Jo Contract Law 42; see also Vickery v Woods (1952) 85 CLR 336 at 345; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 491–493…”

19. [19]
    It may also be noted that in Denham Bros Limited v W Freestone Leasing Pty Ltd,^[51] Mullins J also noted the principle (with express reference to the passage in Linden Gardens which is cited above)^[52]:

“Unless there was a novation, an assignment of Denham’s interest under the lease would not carry with it the burden of the option to purchase in cl 33 of the lease.”

20. [20]
    In respect of the further criticism of the applicants directed at reliance upon implication by conduct in the added particulars to paragraph 26 in the amended statement of claim, for the respondent, reliance is placed upon the following statement of principle in McMahon v National Foods Milk Ltd^[53]:

“As a matter of law, however, there is nothing to preclude a court from inferring the existence of a contract from the acts of the parties, as well as or in the absence of words, and so from the totality of the dealings between the parties. Hence, as matter of law, there is nothing to preclude inferring the existence of a contract of novation from conduct such as, for example, the conduct of a creditor in apparently accepting the liability of a new debtor in substitution for the old. And as was pointed out by the New South Wales Court of Appeal in Tszyu v Fightvision Pty Ltd; Fightvision Pty Ltd v Onisforou, the principle that no narrow or pedantic approach is warranted when searching for contractual intention in commercial arrangements applies equally when searching for an intention to novate.” (citations omitted)

21. [21]
    However what remains, as was conceded for the respondent in the course of oral argument,^[54] is that the pleading in paragraph 26 is couched in terms of assignment rather than novation. Further and without the need to traverse all of the amendments to the statement of claim,^[55] what has been noted in respect of the essential or central relevance of what is sought to be pleaded in paragraph 26 and the bases (alternative or otherwise) upon which the applicants are contended to be liable for the causes of action and relief pursued by the respondent and particularly any implications in respect of any ongoing liability of the third defendant after any such novation , ultimately leads to conclusions that:

1. (a)
   there is an inadequate or inaccurate pleading in paragraph 26 which has a tendency to prejudice or delay a fair trial or fails to identify the issues which require the Court’s attention and determination and that it is appropriate for it to be struck out pursuant to UCPR r 171; and
2. (b)
   in those circumstances, it is pragmatically appropriate that there also be an order disallowing all of the amendments made to the amended statement of claim.

Further discussion

22. [22]
    Although the applicants submit that upon them having relief sought as to striking out paragraph 26 that should be without leave to re-plead,^[56] this is neither a necessary nor appropriate outcome. This is not an instance of striking out an entire statement of claim or cause of action on the basis of early termination of an unreasonable or incompetent claim, but rather a conclusion that the pleading requires adjustment to enable a proper framework for the respondent’s claims. Ordinarily, as has been noted to be the respondent’s contention, it would be open to the respondent to re-plead, except where the UCPR specifically requires that leave be obtained. That might include matters originally overlooked. The purposes of the UCPR are best achieved here by allowance of that ordinary opportunity to do so.
23. [23]
    However and apart from what has already been noted as a particular need for some precision in the articulation of the bases of each of the plaintiff’s claims and as to if and how they may be pursued alternatively,^[57] in doing so it will also be necessary to have regard to the extent to which there may be any merit in any more specific criticisms raised by the applicants, including any difficulty in the adoption of what is referred to as a “narrative style” of pleading or as to appropriate identification of the material facts and necessary particulars upon which a cause of action is premised. That would include:

1. (a)
   identification of the basis upon which the claim in restitution (or for monies had and received) and particularly as whether and how some identified equitable interest of the plaintiff in the Property relates to any such claim or any other claim;^[58] and
2. (b)
   noting that a related difficulty with the amendment made as paragraph 31R, is the complete reliance on the partial content of a piece of evidence (a text message sent by the second defendant), without any articulation of what material fact is thereby established for the purpose of any particular claim against any particular defendant.

Conclusion

24. [24]
    For these reasons, there will be orders that:

1. The amendments made in the amended statement of claim filed on 14 September 2020, are disallowed.
2. Paragraph 26 of the statement of claim filed on 8 August 2019 is struck out.

It will be necessary for the parties to this application to have an opportunity to be heard as to any further directions as to the timing of any further pleading by the respondent and as to costs.