Bremner v Bremner[2020] QSC 374

SUPREME COURT OF QUEENSLAND

1. [1]
   This case concerns family and business relationships arising from a family farming business described in the plaintiff’s pleading as the “Bremner Farms Joint Venture”.  The plaintiff alleges that the family farming business was conducted as a joint relationship, joint enterprise or a joint venture which would operate for the benefit of the Bremner family as a whole during the lifetimes of the parents and, upon their passing, the joint venture assets would be owned by the three sons in equal shares.  According to the plaintiff, since the passing of his father, the plaintiff’s older brother and his mother have asserted that the plaintiff has no interest in the family venture and has acted in other ways so as to unconscionably deny the plaintiff’s beneficial interest in the “Bremner Farms Joint Venture Assets”.  As a result, the plaintiff seeks a declaration that those assets are held on a constructive trust for his mother and the three brothers as participants in the Bremner Farms Joint Venture. 
2. [2]
   The defendants apply to strike out the plaintiff’s pleading on two grounds.  The first is that the allegations in it are not confined to material facts necessary for the declarations and orders sought in the prayer for relief, and are confusing and contradictory.  The second is that the relief sought is not consistent with the facts alleged in the pleading. 
3. [3]
   The plaintiff responds that the defendants are taking an overly technical approach to the pleading and, in effect, asserting a contrary view about the conclusions that should be drawn from the pleaded facts.  The plaintiff submits that this contrary view does not render those facts irrelevant and that the dispute is a question for trial, not a pleading dispute.  The pleading is said to be sufficient to inform the defendants of the case they are required to meet at trial and the defendants’ complaints are submitted to not rise to the level of supporting an order striking out any part of the pleading.
4. [4]
   The application raises two general issues:

   1. (a)
      Is the pleading defective in either of the two respects alleged by the defendants?
   2. (b)
      If so, should the discretion to strike out be exercised and, if so, how?

Background

5. [5]
   The plaintiff is one of three sons in a farming family.  The late Ian Ross Bremner and his wife, Faye, along with their three sons are said to have operated a family farming business through partnerships, companies and trusts since at least 1977.  It is convenient to refer, as the pleading does, to the parties by their first names.
6. [6]
   The plaintiff, Andrew, left the farm at the age of 15, having been encouraged by his father to obtain a trade qualification.  He qualified as a motor mechanic and returned to the farming business where he worked for over 16 years.  He complains that in recent times his mother and his older brother have taken steps to deny his interest in the joint venture, purported to remove him as a director of the corporate trustee which operates the farming business, and have purported to require him to leave the farm unless he agrees to his older brother’s demand to sign documents stating that he is a mere employee.
7. [7]
   The plaintiff’s older brother, Kim, has lived and worked on the family property.  He is married to the third defendant, Janet. 
8. [8]
   The youngest brother, Dion, left the farm to work as a missionary.  While Dion has not been involved in the day to day running of the family business, his work as a missionary is said to be important to Faye and Kim, who are Christians and consider Dion’s missionary work to be important and to benefit the family. 
9. [9]
   The historic ownership of different farming properties and other assets such as water allocations, and the conduct of a family trust which has carried on the family farming business comes with its complexities.  The plaintiff pleads that the fifth defendant (“Vitonga”), as trustee of the Bremner Family Trust is the entity through which the family has carried on the family farming business known as Bremner Farms.  The various assets pleaded in paragraphs 2 to 19 of the pleading are collectively referred to as the “Bremner Farms Joint Venture Assets”.
10. [10]
    The essence of the plaintiff’s case is that since at least 1977 the family, through partnerships, companies and trusts, has conducted a family farming business:

    1. (a)
       by utilising the assets and property which from time to time comprised the “Bremner Farms Joint Venture Assets”;
    2. (b)
       in the form of a joint relationship, joint enterprise or joint venture founded on a relationship of mutual trust, confidence and assistance;
    3. (c)
       by the family, from time to time performing diverse activities for the advancement of the family’s financial and other interests; and
    4. (d)
       with a view to mutual profit.

By reason of that conduct (which is further pleaded in paragraph 21 of the pleading), a joint relationship, joint enterprise, or a joint venture is said to exist between the parties.

11. [11]
    Paragraph 21 of the plaintiff’s pleading, to which the defendants directed specific complaints, consists of a number of subparagraphs which are pleaded to be conduct which “evidences the existence of the Bremner Farms Joint Venture, and in the further alternative, from which the Bremner Farms Joint Venture is inferred”. 
12. [12]
    Paragraph 22 pleads that as a result of the matters that have been pleaded, benefits accrued to the Bremner Farms Joint Venture in the form of the Bremner Farms Joint Venture Assets. 
13. [13]
    Paragraph 23 of the pleading alleges that in the premises pleaded at paragraphs 20 to 22, the Bremner Farms Joint Venture was conducted on the basis that:

    1. (a)
       the Bremner Farms Joint Venture (including all of its associated real and other property comprising the Bremner Farms Joint Venture Assets) would be owned and controlled by Ross and Faye during their lifetimes but would operate for the benefit of the Bremner family as a whole;
    2. (b)
       upon the passing of Ross and Faye, the Bremner Farms Joint Venture Assets would be owned by Kim, Andrew and Dion in equal shares;
    3. (c)
       Faye, Ross, Kim, Andrew and Dion would deal with the Bremner Farms Joint Venture Assets only in a way consistent with the matters pleaded in subparagraphs (a) and (b) above.
14. [14]
    The passing of the plaintiff’s father, Ross, appears to have triggered the present dispute.  According to Andrew, Kim and Faye have asserted that Andrew has no interest in the family venture, purported to remove Andrew as a director of the operating entity and purported to require Andrew to leave the farm unless he signed an agreement confirming he was a mere employee.  At different times Kim came to be registered as a co-owner of certain parcels of land, but Andrew and Dion did not.  Andrew complains that during the course of this proceeding, the tenancies in common between, on the one hand, Kim and Janet and on the other hand, Faye, were converted to joint tenancies.  The suggestion is that this is a form of succession planning to enable Kim and Janet to gain the whole of the title to those properties upon Faye’s death.  Andrew contends that it would be unconscionable for Kim and Faye to assert beneficial ownership of the properties according to ownership of the legal title.  He argues that it is unconscionable for them to do so, given the nature of the joint family endeavour which has existed throughout most of the sons’ lifetimes, but which has now broken down.

A common endeavour constructive trust

15. [15]
    The essence of the plaintiff’s case is that the foundation of the joint venture or endeavour has been removed, and, as a result of unconscionable denial of Andrew’s beneficial interest in the joint venture assets, the assets are held on constructive trust for the participants in the joint venture.
16. [16]
    The plaintiff’s submissions helpfully summarise the elements that must be present for a constructive trust to arise in such a case:

    1. (a)
       a joint relationship or endeavour exists;
    2. (b)
       the foundation for the joint relationship or endeavour has subsequently been removed;
    3. (c)
       there is no attributable blame for the joint relationship or endeavour coming to an end;
    4. (d)
       one party has retained the benefit of another party’s contribution to the joint relationship or endeavour – such contribution including labour, monetary payment and property; and
    5. (e)
       it is, in all the circumstances, unconscionable, for that party to retain the benefit of the other’s contributions.

These principles are derived from the leading authorities of Muschinski v Dodds^[1] and Baumgartner v Baumgartner.^[2]

17. [17]
    The defendants’ submissions highlight the distinction between, on the one hand, a constructive trust of the type recognised in those cases, often described as a “common endeavour” trust and, on the other, a constructive trust based on actual intention, where there was a common intention that both parties should have a beneficial interest, and the claimant acted to his or her detriment on the basis of that common intention.^[3]  In the latter, the evidentiary basis for inferring a common intention can an express agreement or it can be inferred from conduct, such as the making of contributions to the cost of a property, or meeting expenses in maintaining it.^[4]  Whereas a constructive trust based on common intention requires proof by some means or other that there was such an actual, common intention, it has been said that a common endeavour constructive trust “arises regardless of intention”.^[5]

Principles governing strike out applications

18. [18]
    The principles governing applications to strike out are well-established and there is no significant disagreement between the parties about them. 
19. [19]
    The governing principle is drawn from the frequently cited judgment of Mason CJ and Gaudron J in Banque Commerciale S.A. (en liq) v Akhil Holdings Limited.^[6]  Pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against it.  They also define the issues for decision.^[7]
20. [20]
    Central to the system of pleadings is the concept of a material fact.  A material fact is a fact which is necessary for the purpose of formulating a complete cause of action.  If the material facts are proven then the cause of action is complete.  As Jackson J observed in Mio Art Pty Ltd v Macequest Pty Ltd & Ors:

“By adhering to the concept of a material fact in the practice of pleadings, the courts serve the purposes of efficiency and cost-saving which inform the procedural rules.  The only issues joined are upon material facts.”^[8]

21. [21]
    Rule 149 of the Uniform Civil Procedure Rules 1999 (Qld) provides that a pleading must:

    1. (a)
       be as brief as the nature of the case permits; and
    2. (b)
       contain a statement of all the material facts on which the party relies but not the evidence from which the facts are to be proved; and
    3. (c)
       state specifically any matter that if not stated specifically may take another party by surprise.
22. [22]
    The discretion to strike out that is conferred by r 171 may arise in a variety of circumstances.  One is where the statement of claim does not disclose a reasonable cause of action.  It may purport to disclose a cause of action but be bad in law.  For example, it may omit an essential material fact or plead matters which are not capable in law of giving rise to the relief sought.  A different type of case is where the pleading is inadequate because it pleads unnecessary matter, is confusing, does not inform the other party of the case it is required to meet or otherwise has a tendency to prejudice or delay a fair trial of the proceeding.
23. [23]
    The Court’s role is to ensure that the pleadings serve their purpose, comply with pleading rules and aid the just and expeditious resolution of the real issues in dispute at a minimum of expense.  The Court’s role is not to “dictate to a party a rigid manner in which a case should be pleaded”.^[9]  Therefore, “courts are slow to interfere and ordinarily act only where there is some substantial objection or some real embarrassment”.^[10]
24. [24]
    The rules governing pleadings exist for a reason and non-compliance with them is likely to result in the issues in dispute not being clearly identified.  This may have consequences for the conduct of disclosure, increase the costs of preparing for trial and prolong the trial.
25. [25]
    In Robert Bax & Associates v Cavenham Pty Ltd,^[11] White JA (with whom McMurdo P and Fraser J agreed) stated:

“… any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to strike out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding …”

The defendant’s general complaints and the plaintiff’s response to them

26. [26]
    The defendants complain about the inclusion in the plaintiff’s pleading of allegations which are not relevant to an entitlement to relief in accordance with the principles stated in the authorities about the breakdown of a joint relationship or endeavour, such as Muschinski v Dodds and Baumgartner v Baumgartner.  The consequence of the inclusion of irrelevant matters is submitted to be that the pleading is apt to confuse, rather than clarify, the true case advanced by the plaintiff.  Reliance is placed upon the proposition that a common endeavour constructive trust arises regardless of intention.
27. [27]
    The defendants also submit that many of the matters pleaded in paragraphs 20 and 21 of the statement of claim do not constitute material facts or relevant matters which inform the defendants of the matters upon which the plaintiff intends to rely and from which the joint venture is to be inferred. 
28. [28]
    The next general complaint of the defendants is that the declarations and orders sought are not consistent with the facts alleged in the statement of claim.
29. [29]
    Before turning to the defendants’ specific complaints, it is appropriate to identify the plaintiff’s general response to these complaints. 
30. [30]
    The plaintiff submits that the defendants’ complaint about specific subparagraphs of paragraph 21 of the pleading, namely that the relevant facts are incapable of supporting a finding that the joint endeavour existed, misunderstands the pleading.  The different facts or elements are not relied upon individually, but in combination, to support the conclusion of a joint endeavour.  This is said to be apparent from the opening words of the paragraphs. 
31. [31]
    Next, the plaintiff responds to the defendants’ reliance upon the distinction between a common endeavour constructive trust and a constructive trust based on actual common intention.  The defendants complain that some of the facts alleged in the plaintiff’s pleading could only go to a common intention constructive trust rather than a common endeavour constructive trust.  The plaintiff responds that this is wrong because evidence of intention is not irrelevant to a common endeavour constructive trust case.  The parties’ conduct and their demonstrated intention to act for their mutual benefit can be relevant to whether the asserted common endeavour exists.
32. [32]
    I accept the plaintiff’s argument on this last point.
33. [33]
    A common endeavour constructive trust may arise without proof of a common intention.  In that context, Deane J observed in Muschinski that the trust may arise “regardless of intention”.^[12]  However, that is not to say that the intention of the parties is necessarily irrelevant to whether or not a constructive trust is imposed in the case of a common endeavour whose foundation has been removed and whether it is, in all the circumstances, unconscionable for a party to retain the benefit of the other’s contributions.
34. [34]
    That the intention of the parties may be relevant to a constructive trust that is imposed to prevent an unconscionable assertion of legal title appears in the following passage of the judgment of Campbell J (as his Honour then was) in West v Mead:

“Another aspect of difference between the Baumgartner basis for a constructive trust, and a resulting trust, concerns the role which the intention of the parties plays.  The Baumgartner type of constructive trust is imposed to prevent an unconscionable assertion of legal title, in circumstances where the parties had no explicit intention about how the legal title would be held in the circumstances which have arisen.  By contrast, the presumption of a resulting trust is one which seeks to give effect to the intention of the parties, by making a presumption about what that intention was … Even so, that is not to say that the intention of the parties has no role to play in whether a Baumgartner constructive trust should be held to exist.  Part of the justification for imposing the Baumgartner constructive trust is that the parties have jointly been building up assets, on the basis that those assets will be available for the joint endeavour in future.  Part of the reason why it can be unconscionable to let the legal title lie where it falls, if the relationship fails, is that each knew that the other was contributing to a common pool on the basis that the pool, and assets acquired from it, would be used for their ongoing common benefit.  It is unconscionable for the party who ends up, at the end of the relationship, with a disproportionate share of the assets which were built up during the relationship, to keep those assets when he or she knew that that was the basis on which the assets were being built up.”^[13] (emphasis added)

35. [35]
    More recently, Robb J in Spink v Flourentzou stated that “the parties’ intention as to how the joint endeavour would end if it was implemented to fruition may have a proper bearing on the relief that should be given.”^[14]
36. [36]
    I would add that the intentions of the parties may be relevant to the identification of the joint venture and whether it has broken down.^[15] 
37. [37]
    A common endeavour constructive trust may arise where the parties did not share an actual intention that the relevant property should be owned in particular proportions.  In that sense it arises regardless of a common intention.  However, an intention that the parties would build up assets for their mutual benefit may be relevant to the question of whether it would be unconscionable to allow a party to assert that another party to the joint endeavour has no interest in the assets, and that legal title should lie where it falls.

The specific deficiencies alleged by the plaintiff

38. [38]
    Paragraph 21 of the plaintiff’s pleading is central to his case.  As noted, it pleads conduct which is said to evidence the existence of the Bremner Farms Joint Venture (being the joint relationship, joint enterprise or joint venture referred to in paragraph 20) or from which that joint venture is to be inferred.
39. [39]
    The defendants submit that it is necessary to consider the allegations in each of the subparagraphs of paragraph 21 to determine whether they allege relevant, and therefore material, facts which are the elements of the cause of action on which the plaintiff relies.
40. [40]
    This is true.  However, I accept the plaintiff’s submission that it is inappropriate to inquire whether each subparagraph of paragraph 21 is capable, in isolation, of establishing that the pleaded joint venture existed.  The plaintiff is entitled to rely upon matters which, in combination, support the inference or conclusion that there was such a joint venture.  The issue is whether the matters pleaded in paragraphs 20 and 21 are capable of establishing that such a joint endeavour existed.  Ultimately at trial the pleaded joint venture will not be proven as a matter of inference unless the inference as to its existence is a reasonable and definite one.^[16]
41. [41]
    If a matter pleaded in a separate subparagraph is not itself an element of the cause of action, its pleading may be justified as placing the defendants on notice of the circumstantial case the plaintiff advances to prove that the joint endeavour alleged by him existed.
42. [42]
    I turn to the defendants’ specific criticisms. 

Subparagraph 21(Aa) – the Ross Bremner Family Trust

43. [43]
    This subparagraph alleges that this trust was settled in August 1977, that its beneficiaries were Ross, Faye, Kim, Andrew and Dion, and that it made provision for the capital and income to be divided at the trustee’s discretion when the youngest beneficiary attained the age of 21, or in default of such an exercise that the whole of the capital and income was to be paid between the beneficiaries in equal shares.  The defendants argue that the pleading does not identify how these matters are relevant to proof of the common endeavour upon which the plaintiff’s case is based.  The plaintiff responds that these matters identify the approximate start date of the common endeavour and the beneficiaries are consistent with the plaintiff’s case as to the form of the endeavour.  I accept that these matters are arguably relevant to the commencement of the joint endeavour.  Their retention does not prejudice the fair trial of the proceeding.

Subparagraphs 21(b) and (c)

44. [44]
    These subparagraphs allege that the will of  Ross at the date of his death and the will of Faye at the date of Ross’ death each provided for his or her interest to pass to the surviving spouse, or if the spouse should not survive, to each of the sons in equal shares. 
45. [45]
    The defendants argue that the wills concerned the testamentary disposition of property and cannot evidence the existence of a common endeavour during the lifetimes of the parents.  Testamentary dispositions in a will are submitted to say nothing about the nature of the relationship, or the existence or otherwise of a common endeavour, between the testator and the beneficiaries under a will.
46. [46]
    There is an argument as to why the terms of the wills do not support the inference contended for.  That the wills made provision for the sons to share equally in the whole of a parent’s estate does not prove that a farming business (which included assets that did not fall into the estate, but which were held on trust) was conducted on the basis that the assets would be owned and controlled by the parents during their lifetime, and would be owned by the three sons in equal shares after the passing of their parents.  A parent may have decided to leave his or her estate in equal shares in circumstances where other assets in the business which did not fall into the estate were retained by the legal owner.  These seem, however, to be arguments for trial as to whether the testamentary dispositions in the will support or say nothing about the basis upon which the alleged joint venture was conducted.  In my view it is open to the plaintiff to contend that the wills are consistent with the form of common endeavour alleged by him.  As the plaintiff submits, wills can demonstrate both an intended testamentary disposition and the form of an existing common endeavour.  They are not mutually exclusive.  I decline to strike out these subparagraphs.

Subparagraph 21(d)

47. [47]
    This subparagraph alleges a number of “succession planning” meetings and discussions about how the “Bremner Farms Joint Venture Assets” would pass to the sons upon the eventual passing of the parents. 
48. [48]
    Similar arguments are raised concerning the relevance of these matters, with the defendants arguing that the allegations do not tend to prove the existence of the alleged common endeavour.  In my view, the plaintiff is entitled to rely upon these matters to support the inference that the common endeavour existed.  They are consistent with a recognition by the relevant parties that legal title to the properties would need to be adjusted, to accord with the common endeavour’s eventual equal division of ownership between the three sons.

Subparagraph 21(da)

49. [49]
    Similar considerations apply to this subparagraph which concerns advice received about a proposed “intergenerational family rearrangement” pursuant to which the parents’ interests in the assets of the joint venture were intended to be transferred to the three sons in equal shares. 

Subparagraphs 21(e)(i), (ii) and (iii)

50. [50]
    These subparagraphs concern Andrew’s temporary absence from the property when he obtained his trade qualifications.  The defendants argue that these subparagraphs appear to proceed on the basis of a common intention or an equity of expectation.  The plaintiff responds that these subparagraphs give context to subparagraph 21(e)(iv) and following, which concern Andrew’s return to the farm and his work on it for more than 16 years.  In my view, they explain the background to his return to the farm and working on it which, in turn, supports the inference that he worked there in the course of a common enterprise and drew minimal amounts in order to promote the success of the family joint venture.

Subparagraph 21(f)

51. [51]
    Subparagraph 21(f) alleges that Kim has contributed to work for the “Bremner Farms Joint Venture” and guaranteed the “Bremner Farms Joint Venture’s” debt.  The complaint is that these allegations are expressly premised on the existence of the Joint Venture, whereas the facts alleged in subparagraph 20(f) and the other subparagraphs are relied upon as facts which support the inference that such a joint venture existed.
52. [52]
    The plaintiff submits that the complaint is a semantic one about the use of the words “Bremner Farms Joint Venture”.
53. [53]
    I do not regard the complaint as purely a semantic one.  As I observed during the hearing of the application, the use of definitions in the pleadings such as the “Bremner Farms Joint Venture Assets” and the “Bremner Farms Joint Venture”, whilst understandable, has some unfortunate consequences.  For example, in the subparagraphs concerning the last will of Ross, it is alleged that his will provided for all of his interest in the “Bremner Farms Joint Venture Assets” to pass.  The particulars seek to clarify that the reference to “the whole of my estate” in the will included Ross’ interest in the Bremner Farms Joint Venture Assets.  However, this has a tendency to confuse matters since the will surely did not use the words “Bremner Farms Joint Venture Assets” and referred simply to “the whole of my estate”. 
54. [54]
    Subparagraph 21(f) presents a similar problem because it assumes the existence of what it seeks to prove.  For instance, it seems unlikely that any guarantee by Kim would have been cast in terms of the “Bremner Farms Joint Venture’s debt”.  Instead, it presumably would have guaranteed certain identified debts which, on the plaintiff’s case, was a business debt, a company debt or a partnership debt, with the relevant entity forming part of the joint venture assets. 
55. [55]
    It would have been better to avoid using these labels or definitions.  They probably do more harm than good.  Consideration should be given to recasting the pleading.  However, the defendants are not prejudiced by these matters.  They can reasonably understand the case which the plaintiff seeks to make in respect of Kim’s conduct in working for the family business and guaranteeing debts.

Subparagraphs 21(e), (g), (i) and (k)

56. [56]
    The same issues arise in this context concerning the use of the definitions.  It would have been preferable for the pleading to identify the entity in which an individual worked or to have used some neutral term that did not include Joint Venture, and which did not tend to presume the existence of the joint venture which the paragraphs seek to prove.  However, the essential points being made by these subparagraphs should be apparent to the defendants.

Subparagraph 21(g) and (j)

57. [57]
    Subparagraphs 21(g) and (j) relate to the Dion’s involvement as a director of Vitonga and the respects in which his work as a missionary is alleged to have been, or been perceived to be, in the advancement of the family’s interests.  They also concern how Vitonga as trustee of the Bremner Family Trust has paid for certain of his expenses.  The defendants argue that these matters are not capable of demonstrating the existence of the joint venture.  There is force in this argument, however, I consider that it is an argument which should be left to the trial rather than result in the allegations being struck out.  The relevant allegations, in conjunction with other allegations concerning the business paying for living expenses of family members, arguably supports the plaintiff’s case that the business was conducted on the basis that it benefited each family member who contributed, in different ways, to the common endeavour.

Subparagraph 21(k)

58. [58]
    This alleges that Faye required that wives of her sons not undertake outside employment so that they might devote their energies to advancing the joint venture and the family as a whole.  I accept the plaintiff’s submission that this allegation, in combination with other allegations concerning diverse matters, including the payment of expenses for family members who have resided near and worked in the business, is relevant to the existence of the common endeavour.  An expectation or request that family members not undertake outside employment is consistent with the alleged common endeavour whereby the business was conducted on the basis that members of the family would perform diverse activities for the advancement of the family’s financial and other interests and with a view to mutual profit.  The allegation supports the joint venture contended for.

Subparagraphs 21(db), (h) and (i)

59. [59]
    These subparagraphs allege that relevant family members have received drawings and other payments from the fifth defendant as trustee of the Bremner Family Trust and that the trustee has paid certain expenses on their behalf “at such times as they have resided near and worked in the Bremner Farms Joint Venture”.  The defendants complain that these matters do not demonstrate the existence of the alleged joint venture.  They are said to be not probative of its existence.  I accept that this conduct may be explained on some other basis if, for example, drawings are accounted for on some other basis.  However, as a matter of pleading, rather than decision at trial, the conduct in question seems capable of supporting, along with other matters, the inference which the plaintiff contends for.  The taking of drawings and the payment of expenses is capable of supporting the inference that the joint venture existed.  The fact that it is capable of other explanations is not a reason as to why the plaintiff should not be entitled to rely upon it, along with other matters, in support of the conclusion that the joint venture alleged by him existed.

Conclusion in relation to parts of paragraph 21

60. [60]
    The matters pleaded in paragraphs 20 and 21 might have been better structured so that the cart (the “Bremner Farms Joint Venture”) did not come before the horse (or horses).  This would have avoided the problem of some subparagraphs of paragraph 21 using the definition.  However, these matters do not justify my exercising the discretion to strike out most of paragraph 21.  Its subparagraphs sufficiently identify the matters upon which the plaintiff relies to support the inference that there was the alleged joint venture.  They perform the essential function of a pleading of informing the defendants of the plaintiff’s case and the matters which are relied upon to support the inference that the joint venture existed.  I decline to exercise my discretion to strike out the subparagraphs complained of.   

The Claim and the prayer for relief

61. [61]
    The application filed on 23 October 2020 sought orders that paragraphs 2 to 4, 6 and 10 to 12 of the Claim be struck out and that the corresponding paragraphs in the prayer for relief in the pleading be struck out.  The plaintiff’s pleading was further amended in the form of the second further amended statement of claim filed on 6 November 2020.  This resulted in paragraph 7 of the prayer for relief being struck through.  The prayer for relief in the current pleading claims the following relief:

“1. A declaration of the existence of the Bremner Farms Joint Venture as pleaded in the statement of claim.

2. A declaration that the Bremner Farms Joint Venture Assets are held on constructive trust for Faye, Kim, Andrew and Dion as participants in the Bremner Farm Joint Venture.

3. An order that Kim and Janet transfer whatever of the Bremner Farms Joint Venture Assets are held in their name to Faye.

4. A declaration that, upon the conveyance of the Bremner Farms Joint Venture Assets to Faye, Faye holds those assets on trust for herself, Kim, Andrew and Dion.

5. A declaration that Andrew has a caveatable interest in the Bremner Farms Joint Venture Assets.

6. An order that Faye, Kim and Janet account for the draws they have taken made from the Bremner Family Trust.

7. An order that Faye, Kim and Janet repay to Vitonga any money taken from the Bremner Family Trust in excess of their equitable entitlements.

8. A declaration that the shares in Vitonga constitute property of the Bremner Farms Joint Venture.

9. A declaration that Andrew has an equitable interest in the shares of Vitonga.

10. An order that Andrew is entitled to be registered as a shareholder of Vitonga.

11. An order that Faye, Kim and Janet do all such things as are necessary to give effect to the above orders.

12. Further or in the alternative, an order that a statutory trustee be appointed to sell the Bremner Farm Joint Venture Assets pursuant to s 38 of the Property Law Act 1974 (Qld) with the proceeds of the sale to be paid into court pending the account referred in paragraph 6 of this statement of claim.

13. Such further or other relief as this Honourable Court sees fit.

14. Costs.”

62. [62]
    The defendants’ second r 444 letter dated 3 September 2020 conveyed the defendants’ complaints about the paragraphs of the prayer for relief which it now seeks to have struck out.  A recurrent complaint is that the relief sought is not consistent with the material facts pleaded.  For example, the declaration sought in paragraph 2 is said to be not consistent with those facts and a declaration in the unqualified terms sought is said to be contrary to the facts pleaded in various subparagraphs of paragraph 21 of the pleading.  Also, paragraph 28 of the pleading (which alleges that as a result of the existence of the joint venture and Andrew’s participation in it he has a beneficial interest in the Bremner Farms Joint Venture Assets together with Faye, Kim and Dion) is said to be confusing, inconsistent with the earlier parts of the pleading and not reflected in the terms of the declaration sought in paragraph 2.
63. [63]
    Similar complaints are made in relation to paragraphs 3 and 4 of the prayer for relief.
64. [64]
    Paragraph 6 of the prayer for relief, which seeks an account of the drawings from the Bremner Family Trust, is also the subject of complaint.  The defendants contend that it is not evident that the order sought is founded on paragraph 48, which makes a conclusionary assertion that Faye, Kim and Janet have misappropriated funds from the Bremner Family Trust.  The defendants had separately and earlier complained about paragraph 48.  It is not clear to me whether what is alleged elsewhere in the pleading to be withdrawing “excessive funds” from the Bremner Family Trust is alleged to constitute a misappropriation.  Elsewhere, in further particulars, the plaintiff had referred to an entitlement to “equal benefits” from the joint venture.  However, such an important matter should have been pleaded.  A common endeavour conducted on the basis that eventually the sons would own the property equally does not necessarily mean that each son would be entitled to draw equal benefits (or required to contribute equally) each year or over a certain period.  What is the basis of any contention by the plaintiff that each son was entitled to draw only an equal amount from the Bremner Family Trust?  Does he make that contention as part of his case about the basis of the common endeavour?
65. [65]
    The relief claimed in paragraph 10 of the prayer for relief, namely an order that “Andrew is entitled to be registered as a shareholder of Vitonga”, is apparently consequential on paragraph 9 of the prayer for relief.  However, the defendants complain that no basis is disclosed for the order sought in paragraph 10. 
66. [66]
    Paragraph 12, which seeks the appointment of a statutory trustee for sale, is the subject of complaint as being not consistent with the facts contained in the pleading.
67. [67]
    The plaintiff’s general response to these complaints is that there is no inconsistency between the facts pleaded and the relief sought.  The plaintiff submits that the relief “will need to be crafted to address the evidence led at trial and the conclusions which the Court reaches about the nature of the parties’ respective contributions to the common endeavour.”

Some fundamental issues

68. [68]
    The reference to the parties’ “respective contributions” to the common endeavour highlights an important issue about the respects in which the plaintiff’s pleaded case addresses the issues of contribution and the extent to which the relief claimed expects or necessitates assessments of  the brothers’ (and others’) contributions to the joint venture. 
69. [69]
    During the hearing of the application, counsel for the plaintiff indicated that his case proceeded on the basis that the brothers were taken to have made equal contributions.  The proposition seems to be that the contributions of each of the brothers are not alleged to have had different values.  However, this is not said in the pleading.
70. [70]
    The Court and the defendants should not be left to guess about the nature of the plaintiff’s case as to the relevance of contributions and how contributions are to feature, if at all, in the granting of remedies.  This is an important matter.  The parties should understand the purpose for which any evidence is to be led at trial about the parties’ respective contributions.  For example, the defendants are entitled to know whether the plaintiff’s case is that the brothers’ respective contributions are to be treated as having equal value in the light of the manner in which the joint venture was allegedly conducted up until 2017 or thereabouts.  They are similarly entitled to know whether the relief sought by the plaintiff involves the application of “the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.”^[17]
71. [71]
    On one view of the plaintiff’s pleading, and with particular reference to paragraph 23, the alleged joint venture was not conducted on the basis that differences in contributions over the years were to feature in the eventual equal division of ownership of the property between the three sons.  It alleges that the joint venture was conducted on the basis that the assets would be owned and controlled by Ross and Faye during their lifetimes but would operate for the benefit of the family as a whole, and that upon the passing of Ross and Faye, the assets would be owned by Kim, Andrew and Dion in equal shares.  Incidentally, this leaves unclear whether that equal ownership would simply be equal beneficial ownership, with legal title to property remaining where it lay, either in the names of a trustee or by parties as tenants-in-common or joint tenants.
72. [72]
    If the plaintiff anticipates that the relief granted by the Court will take account of the parties’ respective contributions to the common endeavour then a number of issues arise as to the respects in which those contributions may be said to have already been rewarded by interests in property, wages, drawings upon or distributions from the Bremner Family Trust or the payment of expenses by the Bremner Family Trust.
73. [73]
    As to property, it is reasonably apparent from the pleading that transfers of property since 2017 of the kind alleged whereby Faye’s interest as a tenant-in-common became a joint interest, are the subject of objection.  This is the basis upon which paragraph 3 of the prayer for relief requires Kim and Janet to transfer certain interests in those properties to Faye.  The pleading is unclear as to the status of property that Kim or Kim and Janet acquired in the distant past.  For example, the relevant assets include the property The Meadows which was purchased in about 1997 and registered as tenants-in-common, with Ross and Faye holding 50 per cent as joint tenants between them, and Kim and Janet holding 50 per cent as joint tenants between them.  Does Kim and Janet’s 50 per cent holding need to be brought into account because, on the plaintiff’s case, it was never beneficially owned by them?  Might such an interest in property be a recognition of Kim and Janet’s contribution to the alleged joint venture?  These and many similar questions remain unclear. 
74. [74]
    The plaintiff’s pleading does not make clear whether the relief to which he claims to be entitled requires some working out of respective contributions.  This has a tendency to prejudice the conduct of the proceeding.  On one reading of the pleading, the alleged joint venture was conducted over the decades on the basis of “from each according to his ability, to each according to his needs”, although there is no suggestion that the family subscribed to that political slogan.  That slogan may be derived from an ancient source which reflects a similar sentiment about contributions and rewards.^[18] 
75. [75]
    The pleading refers to property interests acquired by Ross and Faye.  It refers to unequal drawings from the Bremner Family Trust in the six years prior to 30 June 2017.  Paragraph 41 asserts that Faye, Kim and Janet withdrew funds from the trusts in amounts which exceeded the amounts drawn by Andrew and his wife, with the result that he has been treated less favourably than Faye and Kim in relation to the operation of the joint venture.  This is said to be a breach of Faye’s, Kim’s and Janet’s fiduciary duties.  If, however, that allegation of breach of fiduciary duties is not sustained, what does the plaintiff say about the drawings?  Are they to be treated, along with wages, as a recognition of contributions or accounted for on some other basis?
76. [76]
    Similar questions arise in relation to the payment of expenses by the Trust.  Is it part of the plaintiff’s case that these need to be accounted for in granting appropriate remedies which take account of contributions made by the parties and the benefits which they have received?
77. [77]
    Paragraph 48 of the pleading refers to the numerous matters pleaded in paragraphs 32 to 40 and, in a conclusionary way, alleges that Faye, Kim and Janet have “misappropriated funds from the Bremner Family Trust and have misappropriated Bremner Farms Joint Venture Assets to the detriment of the plaintiff”.  It says that the plaintiff is entitled to an account in respect of those matters and assets.  The term “misappropriated” is unfortunate.  It potentially covers a multiplicity of sins.  Is it part of the plaintiff’s case that drawings upon the express trust had to be equal and that any drawing which was in excess of a one third or a one quarter interest constituted a misappropriation?
78. [78]
    An interesting question, the answer to which is not apparent from the pleading or the relief claimed, is what the plaintiff’s case is as to how things would have been accounted for, if at all, had the alleged joint venture run its course, such that upon the passing of Ross and Faye, the various Joint Venture Assets would be owned by Kim, Andrew and Dion in equal shares.  Would that equal ownership have ignored differences in contributions, differences in drawings from the Bremner Family Trust and differences in rewards (in the form of property interests, wages and/or the payment of expenses) over the years that the joint venture operated?

Conclusion concerning the prayers for relief and their basis in the pleading

79. [79]
    The plaintiff’s case concerning the existence of a joint venture and the basis upon which it was conducted is sufficiently clear.  That Faye, Kim and Janet are alleged to have conducted themselves in a way which is inconsistent with the joint venture is also sufficiently pleaded. 
80. [80]
    Paragraphs 32 to 40 plead a variety of matters concerning alleged improper or unconscionable conduct.  Some prayers for relief, such as paragraph 6, do not make clear whether the relief sought flows from a declaration as to the existence of a joint venture and a declaration that the alleged Joint Venture Assets are held on a constructive trust, or depends upon a separate, free standing entitlement, for example, as a beneficiary under a family trust. 
81. [81]
    More fundamentally, if a constructive trust is declared, the relief sought does not make clear how the plaintiff proposes that the property subject to that trust is to be held.  Is it to be held to await Faye’s death, whereupon each brother will have a one third beneficial interest in it?  How are the parties’ respective contributions to the common endeavour prior to the breakdown alleged by the plaintiff, and since then, to be recognised in the remedies which the Court grants?
82. [82]
    These significant issues about the nature of the plaintiff’s case and the remedies which he seeks should not be the subject of guesswork or left until the trial.  The relief, if any, granted at trial will be crafted to address the evidence led at it.  However, the Court and the parties are entitled to know well before trial the nature of the plaintiff’s case concerning the remedies which he claims, the material facts upon which the different forms of relief are based and the extent to which the trial will be concerned with the parties’ respective contributions to the alleged joint venture.  If, for example, the plaintiff’s case is that contributions by the parties over a certain period or even up to trial should be treated equally, then this should be apparent from his pleading.  That will enable the defendants to know the plaintiff’s case in that regard and whether the trial is concerned with an assessment of the value of respective contributions.
83. [83]
    I do not consider that the pleading has informed the defendants or the Court of the basis upon which some of the relief claimed by the plaintiff, particularly consequential orders upon a declaration as to the existence of a constructive trust, is sought.  This uncertainty has a tendency to prejudice or delay the fair trial of the proceeding.
84. [84]
    The appropriate course is not to simply strike out some paragraphs in the current pleading and some paragraphs in the prayer for relief.  The simpler, and probably less expensive course, is to strike out the second further amended statement of claim and grant the plaintiff leave to re-plead.  This will enable the plaintiff’s advisers to consider what current allegations, including many matters which have been admitted in the defence (or which are unlikely to be contentious), should remain.  They can also consider:

    1. (a)
       the sequence in which the matters contained in paragraphs 20 and 21 are pleaded and any refinement of them so as to avoid unintended consequences with the use of definitions; 
    2. (b)
       the respects in which contributions, drawings and rewards are addressed; and 
    3. (c)
       a refinement of the relief claimed so that the basis of the relief is clear. 
85. [85]
    As to the last matter, does the plaintiff seek certain property to be held on a constructive trust which, following Faye’s death, will be owned equally by the three brothers?  Does the plaintiff contemplate declarations and consequential orders which have the effect of restoring to each of the relevant parties contributions which he or she has made to the alleged joint venture?
86. [86]
    The relief sought and the material facts upon which specific forms of relief are sought should be made clearer.

Orders

87. [87]
    I propose to make the following orders:

1. The second further amended statement of claim filed 6 November 2020 be struck out in its entirety.

2. The plaintiff have leave to amend his pleading.

3. Any further amended pleading may be drawn and settled in a form which does not require the plaintiff to strike through paragraphs of the pleading in accordance with rule 382.

4. The plaintiff have leave to amend the Claim so that the claims made in it accord with the relief claimed in the newly amended pleading.

5. The parties attempt to agree:

1. a date for the filing and service of the aforesaid documents;
2. dates for an amended defence and a reply to the amended defence to be filed and served;
3. directions for mediation or some other form of alternative dispute resolution; and
4. trial directions if the matter is not resolved by a certain date.

88. [88]
    If required I will hear the parties on the question of costs.  The plaintiff successfully resisted a substantial part of the application.  The defendants have, however, enjoyed success on the second part of their application.  Subject to further submissions, an appropriate order as to costs would seem to be that the costs of and incidental to the application be the parties’ costs in the proceeding.
89. [89]
    I request counsel for the parties to attempt to agree appropriate orders and directions and to submit draft orders to my Associate by 17 December 2020.