Thynne v Jevny Pty Ltd (No 2)

1. [1]

   The plaintiff, Harry Bernard Thynne, commenced these proceedings by summons filed on 27 July 2022. Mr Thynne filed a statement of claim on 1 November 2022.

2. [2]

   The first defendant is Jevny Pty Ltd (Jevny), which is the trustee of the Thynne Family Trust. Mr Thynne’s claim against Jevny is not relevant to the applications that are now before the Court, and will not be considered further. The relevant claims are those made by Mr Thynne against the second defendant, Victoria Diane Sheringham. Ms Sheringham is Mr Thynne’s stepmother. Mr Thynne’s father was James Bernard Thynne (the deceased). The deceased and Mr Thynne’s mother were divorced in about 1990. The deceased married Ms Sheringham in 1996. In the same year, their son, Patrick Lachlan Thynne, was born. The deceased died on 22 June 2011 while married to Ms Sheringham.

Memorandum of Wishes

1. [3]

   The dispute that is the subject of the applications that are before the Court arises out of the circumstances in which the deceased and Ms Sheringham made mutual wills on 25 March 2011, which is the same date as that upon which both the deceased and Ms Sheringham signed a Memorandum of Wishes, which contained a statement of the basis upon which the deceased had devised the matrimonial home, which I will call “the Property”, to Ms Sheringham.

2. [4]

   Paragraph 5 of the Memorandum of Wishes, which relates to the devise of the Property, provided:

3. [5]

   In essence, Mr Thynne alleges that Ms Sheringham has used the Property in ways that are inconsistent with this provision in the Memorandum of Wishes, and he has sought certain relief consequently on the basis that Ms Sheringham was bound by fiduciary duties that were imposed upon her registered ownership of the Property following its devise to her under the deceased’s will.

Introduction

1. [6]

   By way of introduction, this dispute raises difficult conceptual issues that arise out of the principles considered by the High Court in Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52, particularly in relation to the consideration by Dixon J of the restrictions that may be imposed upon a party to a mutual wills agreement, whereby that party (the survivor) receives property (the inherited property) under the will of the first to die (the testator), on the basis that the survivor will maintain the terms of that party’s mutual will, given the events that may occur in the remainder of the survivor’s life in respect of the ownership of the inherited property, and the restrictions that may have been agreed between the parties concerning the manner of use of the inherited property.

2. [7]

   In particular, it will be seen from an examination of par 5 of the Memorandum of Wishes that the title to the Property was to be vested in Ms Sheringham absolutely, subject to whatever restrictions on her use of that property were imposed by her agreement to the terms of the Memorandum of Wishes. Ms Sheringham agreed to leave the Property or any other property that she bought to replace it, or the proceeds of sale of any such property, to both Mr Thynne and Patrick Thynne in equal shares. That was expressed to be in accordance with the terms of Ms Sheringham’s will. Certain advances were to be taken into account in determining equality between the two children. Then came the acknowledgement: “I acknowledge that Victoria may need to use the proceeds of the sale or rental of the Property for her maintenance and upkeep, the maintenance and education of Patrick and the maintenance of the Property and of the Farm”. It is sufficient to note at this point that the effect of the acknowledgement is, in a somewhat indefinite way, to allow Ms Sheringham to benefit personally from her ownership of the Property in a manner that would derogate from her capacity to devise that property, a substitute property, or the proceeds of sale of those properties, to Mr Thynne and Patrick Thynne.

3. [8]

   I will introduce the issues by noting that Ms Sheringham has granted a mortgage over the Property to secure a debt that she has used to fund the farming business that was devised to her under the will of the deceased that is conducted on the property referred to in par 5 of the Memorandum of Wishes as “the Farm”. By way of background, the Farm (being the physical property) was apparently owned by the deceased’s parents, and was transferred to Jevny as trustee of the Thynne Family Trust on the basis that it would be leased to the deceased on commercial terms for the purpose of him conducting a farming business. The Farm itself remains in the ownership of Jevny, and it is only the farming business under the lease that was devised to Ms Sheringham under the will of the deceased.

4. [9]

   One aspect of Mr Thynne’s claim is that the transactions that are authorised by par 5 of the Memorandum of Wishes do not include – in express terms – the authority to grant mortgages over the Property. Mr Thynne also claims that the reference to the Farm is limited to the physical property and not the farming business. He says that Ms Sheringham was only authorised to use money raised on the basis of her ownership of the Property for the maintenance of the physical property and not her farming business. While the validity of that claim will depend upon the proper construction of the Memorandum of Wishes, it may be observed that it would be strange for the deceased to have intended to confine Ms Sheringham’s use of funds to the maintenance of the Farm (limited to the physical property), which Ms Sheringham would not own, while restricting her from using the funds to maintain the farming business, which she would own. In any event, the concept of maintaining a Farm in a way that is entirely separate from the maintenance of the farming business conducted upon it is – at best – elusive.

5. [10]

   As will be explained below, Mr Thynne has recently discovered that Ms Sheringham has applied part of the money borrowed from Westpac Banking Corporation to purchase in her name a farm located in the north of this State from her parents. Mr Thynne now propounds a case that, whatever right Ms Sheringham may have had to mortgage the Property, par 5 of the Memorandum of Wishes did not authorise her to apply the money borrowed for the purchase of a different farming property, in particular from her parents. Mr Thynne makes this claim in the context that her title to the new farming property will not under the terms of her will be devised in accordance with the Memorandum of Wishes.

Caveat application

1. [11]

   The immediate issue in these proceedings has arisen because Mr Thynne took the stance that the effect of the mutual wills and Ms Sheringham’s agreement to the terms of the Memorandum of Wishes was that, upon the title to the Property being registered in Ms Sheringham’s name, she became a trustee of the property for Mr Thynne and Patrick Thynne equally. Mr Thynne sought to protect his alleged equitable interest in the Property by lodging a caveat against the title to the Property. Ms Sheringham caused a lapsing notice under s 74J of the Real Property Act 1900 (NSW) to be issued and served on 15 November 2022. By notice of motion filed in these proceedings on 17 November 2022, Mr Thynne sought an order extending the operation of the caveat. By judgment published on 22 December 2022, Hammerschlag CJ in Eq ordered Mr Thynne to withdraw the caveat: see Harry Bernard Thynne v Jevny Pty Limited [2022] NSWSC 1774.

2. [12]

   As his Honour’s judgment was interlocutory in nature, it was necessary for Mr Thynne to seek leave to appeal if he wanted to maintain the caveat. Mr Thynne filed a summons seeking leave to appeal on 15 March 2023. The Court of Appeal made an order granting Mr Thynne leave to appeal from the judgment of Hammerschlag CJ in Eq and then an order dismissing the appeal: Thynne v Sheringham [2023] NSWCA 181.

3. [13]

   By par 27 of the summary of Mr Thynne’s argument in support of his application for leave to appeal, Mr Thynne gave the following reason for leave being given:

4. [14]

   Ms Sheringham responded to this argument in par 45 of her response, by saying:

5. [15]

   It is also relevant to Ms Sheringham’s argument that in the Court of Appeal, Basten AJA made the following observation:

6. [16]

   Ward ACJ and Kirk JA agreed, at [1], with the conclusion of Basten AJA that leave to appeal should be granted. These observations by the Court of Appeal support the conclusion that leave to appeal was granted, in part, on the understanding that the decision in the appeal would resolve the issue of whether Mr Thynne had a beneficial interest in the Property, because Ms Sheringham held her title to the property on trust for him and Patrick Thynne.

7. [17]

   Ms Sheringham made a submission at the hearing that these submissions had a special significance for the outcome of the present applications. That was that Mr Thynne obtained leave to appeal on the basis of a submission that the determination of the question of whether he had an equitable interest in the Property sufficient to support his caveat would determine that issue as between the parties, and Ms Sheringham consented to leave being granted on that basis. To the extent that Mr Thynne maintains his claim that Ms Sheringham holds the title to the Property on an existing trust in favour of Mr Thynne and Patrick Thynne, and to the extent that he seeks leave to amend his statement of claim to seek relief or make allegations of fact in support of his claim that Ms Sheringham holds the property on trust, Mr Thynne will not only be engaging in an abuse of process by maintaining a claim that has already been found to be invalid, but he will be doing so in conflict with the basis upon which leave to appeal was granted to him, being that the determination by the Court of Appeal would finally determine the issue.

8. [18]

   Ms Sheringham made this submission in support of an argument that, even though aspects of the applications now before the Court are interlocutory or procedural in nature, and the Court might usually be inclined to defer the final determination of issues to the hearing of the proceedings on the merits, the Court should be more ready in this case to determine questions of law and to make an order for summary dismissal, insofar as Mr Thynne may be shown to be pursuing a claim that has already been determined against him, even though only on an interlocutory hearing.

9. [19]

   While I do not accept Ms Sheringham’s submission as being determinative, I do agree that the cardinal principle that requires the Court to strive to ensure finality of litigation justifies the Court in being more ready than it otherwise may have been to accept, at this stage of the proceedings, arguments on Ms Sheringham’s part that reasonably sustain the summary dismissal of the contested aspect of the proceedings (see The Ampthill Peerage [1977] AC 547 at 569 per Lord Wilberforce).

Notices of motion

1. [20]

   Following the publication of the judgment of the Court of Appeal, the parties have filed three notices of motion that are now before the Court for determination, as follows:

   1. (1)

      On 12 October 2023, Mr Thynne filed a notice of motion in which he sought leave to file an amended statement of claim in the form annexed to the notice of motion. Subsequently, Mr Thynne revised the draft amended statement of claim.

   2. (2)

      On 16 October 2023, Ms Sheringham filed a notice of motion in which he sought summary dismissal pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4 of the prayers for relief and the associated pleadings and particulars concerning Ms Sheringham’s ownership and use of the Property, as found in both the statement of claim and the draft amended statement of claim. Ms Sheringham also sought relief under UCPR r 14.28 that the same parts of the pleadings be struck out. The hearing was conducted on the basis that the order for summary dismissal was the order primarily sought by Ms Sheringham.

   3. (3)

      On 25 October 2023, Ms Sheringham filed a notice of motion for an order under UCPR r 33.4 setting aside a subpoena issued by the Court to Westpac Banking Corporation at the instance of Mr Thynne. As the subpoena had already been answered, and as Mr Thynne evidently had been given leave to inspect the documents produced, Ms Sheringham also sought orders that would, so to speak, ‘undo’ the effect of the subpoena. Apparently, the documents produced shed light on how Ms Sheringham had expended the money borrowed from Westpac Banking Corporation on the security of the mortgage over the Property.

2. [21]

   At the beginning of the hearing, senior counsel for Ms Sheringham advised the Court that Ms Sheringham’s application would be confined to prosecuting her claim for an order summarily dismissing the relevant parts of Mr Thynne’s pleadings. That was not only on the basis that the Court of Appeal has already determined that Ms Sheringham does not hold the Property on trust for Mr Thynne and Patrick Thynne. That was the principal basis of Ms Sheringham’s claim, but she also submitted that a number of individual claims pleaded by Mr Thynne were so clearly bad in law or doomed to fail that they should be dismissed at this stage of the proceedings. Senior counsel said that, if the summary dismissal application succeeded, then the need for the Court to deal with Mr Thynne’s application for leave to amend would abate. If the Court declined to make the summary dismissal order, then Ms Sheringham would not dispute the application for leave to amend on the basis of the adequacy of the proposed pleading, in a way that would require the Court to descend into a consideration of the adequacy of the formulation of the pleading. Ms Sheringham did not separately pursue the application for an order to set aside the subpoena. I understand that that was on the basis that, if the Court made the summary dismissal order sought by Ms Sheringham, the fact that Westpac Banking Corporation has produced documents in response to the subpoena would cease to be of concern to her. On the other hand, if the Court declined to make the summary dismissal order and granted Mr Thynne the leave to amend that he sought, then the documents produced on the subpoena would be of relevance to the proceedings.

3. [22]

   It is plain that the Court of Appeal dismissed Mr Thynne’s appeal on the basis that it found that, on the facts and as a matter of law, the circumstances did not have the result that Mr Thynne had the present beneficial interest in the Property that he claimed in the caveat that he had lodged. On the current application, the parties made submissions concerning the significance of aspects of the reasoning in the judgments in the Court of Appeal. I will consider those reasons below, after I have explained the relevant parts of the draft amended statement of claim that Mr Thynne seeks the leave of the Court to file.

4. [23]

   I set out below the relevant parts of the final version of Mr Thynne’s draft amended statement of claim, as contained in Exhibit P1. In the conventional way, words intended to be deleted are struck through and added words are underlined. The original exhibit displays revised parts of the draft pleading by double underlining, but it has not been necessary to repeat that in these reasons.

5. [24]

   Ms Sheringham has applied for an order that the Court summarily dismiss the following prayers for relief in Mr Thynne’s current statement of claim, and that it accordingly dismisses his application to amend those prayers in the manner indicated. As I understand Mr Thynne’s position, he has sought leave to amend his statement of claim in order to accommodate the effect of the reasons of the Court of Appeal in the caveat application. Consequently, he accepts that the amendments that he seeks leave to make are necessary, so that, in practical terms, the question is whether the draft amended statement of claim cures the deficiencies in the existing one.

Prayers in draft amended statement of claim

1. [25]

   The draft amended statement of claim relevantly contains the following prayers for relief:

2. [26]

   The features of these prayers for relief that are relevant for the purposes of the present application are:

   1. (1)

      Mr Thynne seeks leave to maintain his claim that he and Patrick Thynne are presently entitled to a beneficial interest in the Property, and the only change proposed is to add an identification of the alleged trust as being a constructive trust.

   2. (2)

      Mr Thynne continues to seek a declaration that Ms Sheringham holds the title to the Property on trust for him and Patrick Thynne as if the trust presently exists, rather than that the alleged trust be created by some order of the Court.

   3. (3)

      Mr Thynne apparently sees some benefit in substituting “the terms of the agreement” for “the terms of the trust”.

   4. (4)

      By adding prayer 22(bb), Mr Thynne would seek a declaration that Ms Sheringham breached her obligations as trustee, by expending the proceeds of the loan secured by the mortgage on her “Farming Business or other than in accordance with and as permitted under the Memorandum of Wishes made 25 March 2011”. This additional prayer would make explicit a claim already raised by Mr Thynne in these proceedings, insofar as it refers to expenditure on Ms Sheringham’s Farming Business. A separate issue arises in relation to the general assertion contained in the words “or other than in accordance with and as permitted”, as it became apparent at the hearing that Mr Thynne has identified the particular expenditure of which he complains, but the circumstances of that expenditure are not specifically pleaded in the draft amended statement of claim.

3. [27]

   For the purposes of determining Ms Sheringham’s application, the observations made above concerning the effect of the proposed amendments to Mr Thynne’s prayers for relief distil into the proposition that Mr Thynne contends that the deficiency in the existing statement of claim exposed by the Court of Appeal’s reasons in the caveat application is cured by making an amendment that does no more than to identify the presently existing trust that Mr Thynne alleges is imposed upon Ms Sheringham’s ownership of the Property as a constructive trust. If this Court is satisfied that the Court of Appeal has determined that no form of presently existing trust is imposed upon Ms Sheringham’s ownership of the property, then it will follow that the Court should reject Mr Thynne’s application to amend prayer 20, and that it should then summarily dismiss that prayer for relief. As prayers 21 to 23 are predicated on the present existence of a trust, it would consequently be necessary for the Court to dismiss those prayers. In relation to prayer 4, Ms Sheringham would be entitled to an order for the costs of this aspect of the application.

4. [28]

   I have observed that summary dismissal of the prayers for relief would be appropriate, because Mr Thynne did not foreshadow at the hearing that he would revise his application to seek different relief, if the Court gave him leave to amend his pleadings and particulars in a manner that would support some alternative prayers for relief.

5. [29]

   I should foreshadow an issue concerning the significance of Mr Thynne’s application to amend his claim to allege the existence of a constructive trust that will require further consideration below. I have always understood a trust, whatever be its description, as being an equitable relationship between the owner of property and some other person for the benefit of whom the owner holds the property (see JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) (Jacobs’ Law of Trusts) at [1-01]). It became apparent during the hearing that Mr Thynne’s use of the expression “constructive trust” may raise an issue based upon the notion that there can be a presently existing constructive trust that imposes fiduciary duties on the trustee in circumstances that do not give the beneficiary of those duties a presently existing interest in property that is the subject of the trust. I gleaned from the submissions made on behalf of Mr Thynne that he claims that his allegation that a constructive trust exists is not inconsistent with the Court of Appeal’s ruling that Mr Thynne did not have a presently existing interest in the Property that was capable of being protected by the caveat that he had lodged. The obvious difficulty in an argument of this nature is that prayer 20 – in terms that are as clear as possible – is a claim that Ms Sheringham holds her interest in the Property on trust for Mr Thynne and Patrick Thynne, whatever description of trust may be sought to be attached to the trust.

Pleadings and particulars in draft amended statement of claim

1. [30]

   I will now set out the pleadings and particulars in the draft amended statement of claim that are directly relevant to the prayers for relief that are the subject of the application for summary dismissal, and in respect of which Ms Sheringham asks the Court to be struck out of the existing statement of claim, with leave to make the relevant amendments being refused. Those pleadings and particulars are:

2. [31]

   The following matters arising out of these pleadings and particulars are relevant to the determination of Ms Sheringham’s summary dismissal application:

   1. (1)

      I understand that the proposed amendments to pars 71 to 74, 76, 80 and 82 are not contentious, insofar as they seek to place the basis of Ms Sheringham’s alleged obligations upon the Memorandum of Wishes and the circumstances in which the deceased made his will in favour of Ms Sheringham. The same is true for the proposed allegation in par 79A.

   2. (2)

      I interpret the proposed amendment to par 75 as having the effect that, by reason of Ms Sheringham owing personal fiduciary duties to Mr Thynne and Patrick Thynne arising out of the circumstances, they have personal standing to enforce those duties. The use of the term “have an equitable interest” in this context may be unconventional, but I understand the interest to consist of the right to enforce fiduciary duties, not an interest in property. If that is the correct understanding of the effect of the proposed amended par 75, I think it is uncontroversial.

   3. (3)

      The proposed additional par 75A is an allegation that Ms Sheringham holds the title to the Property on constructive trust for Mr Thynne and Patrick Thynne. If that allegation is understood in the conventional sense that the consequence is that Mr Thynne and Patrick Thynne are the beneficial owners of the Property, because the property is held on trust for them, that would conflict with the determination of the Court of Appeal that Mr Thynne does not currently have a present beneficial interest in the Property as the beneficiary of a trust. However, the particulars to the paragraph suggest that something different is intended by the allegation in par 75A. This is the issue to which reference has been made above, whereby it appears to be suggested that a person who is a constructive trustee may at a particular time only have personal obligations. The obligation identified in the particulars is an obligation not to abuse or subvert the agreement expressed in the Memorandum of Wishes and the circumstances in which Ms Sheringham accepted the devise of the Property under the deceased’s will. I will return to this issue below.

   4. (4)

      Paragraph 76A appears to be intended to elaborate the terms of the fiduciary duty suggested by the particulars to par 75A. This allegation might support claims for relief against Ms Sheringham that were limited to the consequences of the alleged breaches of her fiduciary duty. If claims of that nature were made, they would not be directly inconsistent with the determination of the Court of Appeal.

   5. (5)

      Paragraph 77A is a complaint that Ms Sheringham had failed to answer requests for details of a loan secured by a mortgage that she granted over the Property. That appears to be more than a background allegation, as prayer 22(c) seeks a declaration that Ms Sheringham was in breach because she refused to provide details of the mortgage which she had granted over the Property. It must be noticed that prayer 22 seeks a declaration that Ms Sheringham “breached her obligations as trustee” [emphasis added] by that conduct. As I have observed above, that prayer will not survive a determination that Mr Thynne is not entitled to claim relief on the basis of Ms Sheringham being a trustee of the Property, if that is inconsistent with the determination of the Court of Appeal. As a matter of pleading, prayer 22(c) might be sustainable, if it sought a declaration that the relevant conduct was a breach of a personal fiduciary duty owed by Ms Sheringham. The outcome would depend upon the ultimate determination by the Court of whether the content of the particular fiduciary duty included an obligation upon Ms Sheringham to provide the information sought by Mr Thynne.

   6. (6)

      Paragraphs 77AB to 78AB, 81 and 81A are allegations of fact and breach based upon two propositions: first, that the terms of the Memorandum of Wishes did not permit Ms Sheringham to grant a mortgage over the Property; and secondly, in any event, it did not permit Ms Sheringham to use the money borrowed for the purposes of her farming business, or in any other way that was not in accordance with the Memorandum of Wishes. As explained at the hearing, Mr Thynne’s case is that the Memorandum of Wishes did not contain any authorisation for Ms Sheringham to mortgage the Property, and it permitted Ms Sheringham to spend money on the Farm (meaning the physical property), but not on the farming business that she conducted on the Farm. These allegations may have been proper allegations of fact and particulars to support prayer 22, if that had sought a declaration that the relevant conduct was a breach of the alleged fiduciary duties owed by Ms Sheringham, but, as I have explained above, prayer 22 is drawn in terms that the alleged conduct “breached her obligations as trustee” of the Property.

   7. (7)

      As a separate observation on the terms of pars 78(b) and 78A(b), the Court was told during the hearing that the expression “or other than in accordance with and as permitted under the Memorandum of Wishes” was adopted because Mr Thynne was not aware of any expenditures other than on the farming business, and he wanted to catch unknown expenditures that were not permitted. As a result of the inspection of the documents produced by Westpac Banking Corporation in answer to the subpoena served upon it, Mr Thynne learned that Ms Sheringham had used part of the borrowed money to purchase a different farming property in the north of this State from her parents. Mr Thynne asserts that the use of the money for that purpose was not permitted by the Memorandum of Wishes. When asked why the purchase of the different farming property was not the subject of a specific allegation in the draft amended statement of claim, counsel for Mr Thynne explained that the fact had only been learned from an inspection of the documents that were produced, and it was not known when the draft amended statement of claim was prepared. That may be so, but I consider that the allegation is sufficiently material that it should be specifically pleaded, and not disclosed by particulars. If an order is made that permits Mr Thynne to amend his statement of claim to include the allegations in pars 78(b) and 78A(b), the leave should be subject to a requirement that the draft amended statement of claim be further revised to include appropriate specific allegations of fact. This new allegation has relevance to the issue that will be addressed below concerning the nature of the equitable proprietary relief that may be available where a survivor who owes the fiduciary duties alleged against Ms Sheringham breaches those duties, by the application of inherited property under the will of the testator, by conduct that prevents or jeopardises the survivor’s capacity to comply with the terms of the relevant agreement. It may be significant that Mr Thynne was not aware of this conduct at the time of the hearing before Hammerschlag CJ in Eq, although there may be issues as to whether he ought to have ascertained the fact by means of the issue of an earlier subpoena.

   8. (8)

      The effect of pars 81AB and 81AC is to allege that the effect of Ms Sheringham having breached her fiduciary duties in a manner that defeated the intention of the agreement under the terms of the Memorandum of Wishes was that her obligations “have crystallised into a trust over the Property for the benefit of Patrick and Harry Thynne”, so that she holds the title to the Property “subject to a constructive trust arising on the death of Jim Thynne, on terms as set out in the Memorandum of Wishes, in favour of Patrick and Harry Thynne”. This is the ultimate allegation that supports the claims in the prayers for relief for declarations based upon Ms Sheringham holding the Property on trust for Mr Thynne and Patrick Thynne. The claim is that Ms Sheringham holds the Property itself on trust, and not that she holds property allegedly acquired in breach of fiduciary duty on trust. The draft amended statement of claim puts the existence of the trust on two bases. The first is that, on the occurrence of a breach of the fiduciary duty that defeats the intention of the agreement, the fiduciary’s obligations ‘crystallise’ in a trust of the property devised to the fiduciary. The second appears to be inconsistent, in that the trust is said to arise on the death of the deceased. I will return to this issue below, but the second alternative appears to be directly inconsistent with the determination of the Court of Appeal. As at least some of the events that are alleged to have caused the ‘crystallisation’ of the trust occurred before the hearing before Hammerschlag CJ in Eq, the first of the alternatives also appears to be inconsistent with the Court of Appeal’s determination.

   9. (9)

      Paragraphs 85A and 85AB seek additional relief that has not been added to the prayers for relief, being an order that the Court should replace Ms Sheringham as trustee of the Property pursuant to s 70 of the Trustee Act 1925 (NSW), or the Court’s inherent power. This claim will not survive if the Court dismisses the claims for relief made by Mr Thynne that require a finding that Ms Sheringham holds the Property on trust. As the definition of “trust” in s 5 of the Trustee Act includes “constructive trusts”, and as “trustee” is defined accordingly, s 70 would apply to Ms Sheringham if she were found to be a constructive trustee of the Property: see Jacobs’ Law of Trusts at [13-01]. This application is not a proper occasion to consider this issue, but it may be observed that, given that the Property was devised to Ms Sheringham, and she is the registered proprietor of the property with an entitlement to the benefit of it for life, subject to whatever restrictions are imposed by the Memorandum of Wishes, it is extraordinary to think that the Court might replace her as a trustee, rather than – if warranted – to make appropriate orders that restricted her use of the property.

3. [32]

   In summary, Mr Thynne's prayers for relief persist in the claim that Ms Sheringham holds the Property on a presently existing trust for Mr Thynne and Patrick Thynne. Apart from declarations to give effect to that claim, Mr Thynne seeks an account for breaches of Ms Sheringham's duties as trustee, and an order that she be replaced as trustee. Mr Thynne does not seek relief in the nature of orders to restrain Ms Sheringham from acting inconsistently with the Memorandum of Wishes or orders restoring the position if it is established that she has committed breaches. Mr Thynne does not seek orders in relation to the beneficial ownership of any property that may have been acquired by Ms Sheringham in breach of the Memorandum of Wishes. As for the pleadings and particulars, many allegations, including proposed amendments, relate to a possible claim based upon the existence and alleged breaches of fiduciary duties owed by Ms Sheringham to Mr Thynne and Patrick Thynne from the date of the death of the deceased. These allegations are not all directly relevant to the relief actually claimed, based as it is upon the present existence of a trust over the Property. The following allegations directly assert or depend upon the existence of a presently existing trust, and not just fiduciary duties owed by Ms Sheringham: pars 75A, 81A, 81AC, 83, 84, 85A and 85AB.

Court of Appeal judgment in the caveat application

1. [33]

   The submissions made by the parties substantially depended on the reasoning of the Court of Appeal. Accordingly, it will be appropriate to set out that reasoning relatively extensively, before I explain the parties’ submissions in this Court.

2. [34]

   Relevantly, Ward ACJ and Kirk JA in their joint judgment relevantly said (aspects of the judgment that have particular significance to my following reasons will be emphasised by underlining):

3. [35]

   It seems clear that their Honours decided that, even in the context where the right of the survivor to deal with the inherited property in the survivor’s lifetime was restricted by the terms on which the survivor and the testator had made mutual wills, a trust binding the survivor of the inherited property does not arise upon the death of the testator in favour of the ultimate intended beneficiary under the mutual wills: see [3]-[9]. Ordinarily, a trust in favour of the ultimate beneficiary may arise on the death of the survivor, if the survivor has altered the survivor’s will, or presumably the survivor has breached any restriction agreed with the testator that has the effect that the survivor’s will cannot operate as expected by the testator, based upon the testator’s knowledge of the terms of the survivor’s will. Their Honours noted that the survivor may be subject to obligations that restrict the survivor’s dealings with the inherited property during the survivor’s lifetime, which their Honours characterised at [12] as a ‘mere equity’. I interpret their Honours’ reasons as extending to any agreed limitation, and not just transactions that are ‘calculated’ in a subjective sense to defeat the agreement between the survivor and the testator. The beneficiary acquires in personam rights against the survivor to enforce limitations agreed between the survivor and the testator. I confess to finding difficulty in resolving the tension that appears to exist between the statement at [12] that the mere equity may crystallise into an equitable interest, once the beneficiary can establish a claim for equitable relief arising out of the fraud by the survivor or to enforce the underlying agreement between the survivor and the testator, such that the “obligations will crystallise into a trust over the impugned assets the subject of the obligations once those obligations are breached” (emphasis added) on the one hand, and the statement at [13] that the equitable entitlement of the beneficiary to complain about particular transactions which diverge from the survivor’ obligations does not give the beneficiary “a specific equitable, proprietary interest in particular assets”. I will return to this issue below.

4. [36]

   The reasons given by Basten AJA for reaching the same conclusion as the plurality were more extensive than those in the joint judgment of Ward ACJ and Kirk JA. I will confine myself to the aspects of his Honour’s judgment in which he considered the situation where mutual wills are made in conjunction with some agreement that restricts the right of the survivor to deal with the inherited property, rather than the case where there are mutual wills without any restrictions on the right of the survivor to deal with the property.

5. [37]

   His Honour said (footnotes omitted):

6. [38]

   In these passages, Basten AJA acknowledged that there may be circumstances where the survivor is restrained in his or her dealings with the inherited property, and that an issue arises where the survivor enters into a transaction “calculated to defeat the intention of the compact”. His Honour appears to reach the conclusion that a disposition by the survivor in his or her lifetime that is inconsistent with the survivor’s equitable obligations will not crystallise a trust over the devised property.

7. [39]

   Later in his reasons, his Honour continued as follows:

8. [40]

   Basten AJA recognised that there is an issue as to whether constraints arising out of the agreement between the testator and the survivor concerning the use of the inherited property may be enforced against the survivor during his or her lifetime. His Honour appears to suggest that the question of whether Ms Sheringham had relevantly breached such constraints had not been raised at the hearing in the Court of Appeal, in the context of the question of whether a presently existing trust had become imposed on Ms Sheringham’s ownership of the Property. Instead, his Honour dealt with the issue of there being potential breaches by treating the possibility in terms of whether there was an arguable claim of breach for the purpose of determining the balance of convenience in the context of deciding whether an order should be made for the continuation of the caveat. I will set out his Honour’s reasons on that issue, in part because, at the hearing, Ms Sheringham asked the Court to agree with the conclusions expressed by Basten AJA when considering the balance of convenience, for the purpose of this Court deciding that aspects of Mr Thynne’s case are hopeless of success. His Honour said (footnotes omitted):

9. [41]

   These passages suggest that, at the hearing before Hammerschlag CJ in Eq, Mr Thynne raised the possibility that Ms Sheringham had breached the agreement with the deceased encompassed in the Memorandum of Wishes by mortgaging the Property and by using the funds borrowed to maintain her farming business, in the manner explained above. His Honour ruled that there could be no trust until the property that could be the subject of the trust became ascertained on the death of Ms Sheringham. It is not clear from Basten AJA’s description of the second stage whether Hammerschlag CJ in Eq distinguished between simple breaches of Ms Sheringham’s obligations and conduct “calculated to defeat the intention of the compact”. His Honour considered the strength of Mr Thynne’s claims that Ms Sheringham had acted inconsistently with her obligations under the Memorandum of Wishes, and concluded that they were so weak as to not justify the continuation of the caveat.

10. [42]

    Unsurprisingly, this demonstrates that, notwithstanding the determination by both Hammerschlag CJ in Eq and the Court of Appeal that Mr Thynne had not established that he was entitled to an existing beneficial interest in the Property that would support the continuation of the caveat, there were aspects of the reasoning in both judgments that were influenced by the interlocutory nature of the application.

Ms Sheringham’s submissions

1. [43]

   As I understand Ms Sheringham’s position at the hearing, it was that, however one viewed Mr Thynne’s prayers for relief concerning Ms Sheringham’s use of the Property, the essence of the claim was that Mr Thynne had a present equitable interest in the property because it was held by Ms Sheringham on trust for Mr Thynne and Patrick Thynne. On the principles of law outlined by Hammerschlag CJ in Eq and by the Court of Appeal, Mr Thynne did not acquire an equitable interest in the property at the time of the death of the deceased, and no event had occurred up to the date of the hearing of the caveat application that gave rise to the creation of such an interest. In any event, Mr Thynne was given the opportunity of satisfying the Court of Appeal that Ms Sheringham held the property on trust for him and Patrick Thynne at the date of the hearing, and that claim was dismissed both at first instance and by the Court of Appeal. Ms Sheringham’s submission was in effect that the proposed amendments to the claims for relief missed the point, and did not recognise or correct the deficiency in Mr Thynne’s claim.

Mr Thynne’s submissions

1. [44]

   In his submissions, Mr Thynne relied upon the extract from the judgment of the plurality in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [4] that was set out by Ward ACJ and Kirk JA: see above at [34]. The point relied upon was that their Honours had recognised the possibility that some constructive trusts create or recognise no proprietary interest, and instead, that the existence of the trust imposes a personal liability to account in the same manner as that of an express trustee. Accepting what the plurality said, that seems to be a statement to the effect that such a ‘constructive trust’ may impose a personal obligation on the trustee, as a fiduciary, to account to the person in the position of the beneficiary. It is not necessary to examine the suggested possibility of a trust existing without trust obligations relating to property: cf Jacobs’ Law of Trusts at [1-01]-[1-02], which explains the relationship between the existence of trusts and property. The observations made by the plurality do not assist Mr Thynne in this case, because the complaint is that he seeks a declaration that the Property is presently held on trust for him and Patrick Thynne. That is not a claim to enforce a personal obligation of Ms Sheringham as a fiduciary to account to him for her conduct.

2. [45]

   Mr Thynne relied upon a passage from the judgment of Dixon J in Birmingham v Renfrew, where his Honour said at 687-688, concerning a judgment of Lord Parker:

3. [46]

   Mr Thynne relied upon a further passage in the judgment of Dixon J at 690, which in its full context at 689-690 is (footnotes omitted):

4. [47]

   Dixon J’s observations concerned a case of mutual wills without a specific compact between the testators that restricted the way that the survivor could deal with the inherited property during the survivor’s lifetime. Nonetheless, his Honour addressed the possibility that the survivor could defeat the compact by alienating the inherited property during the survivor’s lifetime. His Honour appears to say that the survivor’s acceptance of the compact contained in the execution of mutual wills imposes a duty on the survivor on the testator’s death which his Honour described as a constructive trust, but one that floated on the inherited property during the survivor’s lifetime and only crystallised on the survivor’s death. At that time, the agreed beneficiaries would acquire an equitable proprietary interest in the survivor’s estate. Pending the survivor’s death, the beneficiaries do not have a proprietary interest in the inherited property. However, because of the fiduciary duty owed by the survivor to the beneficiaries from the date of the testator’s death, which Dixon J categorised as arising out of a constructive trust that did not attach to the inherited property until the death of the survivor, the beneficiaries will be entitled to equitable remedies during the survivor’s lifetime in respect of transactions undertaken by the survivor to defeat the object of the constructive trust. In a case such as the present, where the compact contains specific restrictions on the use of the inherited property by the survivor during his or her lifetime, the entitlement to equitable relief may arise when the survivor contravenes the restrictions.

5. [48]

   The relevant point for present purposes is that, even if Dixon J’s judgment supports the concept of a constructive trust being imposed upon the survivor at the time of the testator’s death, that is a special sort of constructive trust that consists of duties that are enforceable by the beneficiaries during the life of the survivor, but they do not attach to the inherited property in a way that gives the beneficiaries a proprietary interest as beneficiaries of a trust over the inherited property. The constructive trust only crystallises into a proprietary beneficial interest on the death of the survivor. It is therefore necessary to be precise in the identification of the characteristics of the so-called constructive trust imposed upon the survivor at different times after the death of the testator.

6. [49]

   Dixon J’s judgment allows for the availability of equitable remedies for the beneficiaries during the life of the survivor where the survivor acts in breach of the compact with the testator, but those remedies do not arise out of the existence of a trust that attaches to the inherited property.

7. [50]

   Mr Thynne also relied upon the judgment of Fullagar and Kitto JJ in Voges v Monaghan (1954) 94 CLR 231; [1954] HCA 63 at 240-241, where their Honours said (footnotes omitted):

8. [51]

   That was a case where the beneficiary under a will had accepted an instruction from the testator that she would apply part of the inherited property for the benefit of other persons specified by the testator. It was not a mutual wills case and the beneficiary was not given the inherited property on the basis that she could enjoy it as she wished during her lifetime, provided that she gave a benefit to the other persons in her will. There was no issue of the existence of any floating obligation. It was for that reason that the trust arose on the death of the testator, as the beneficiary’s conscience was impressed with the obligation to comply with the condition upon which the testator left her the inherited property as from the date of his death. The observations made by their Honours concerning the incidence of the creation of the trust are not material to the present case, where the issue is whether, in the context of mutual wills, a survivor who breaches the compact with the testator during her lifetime becomes the trustee of the inherited property for the beneficiary before her own death.

Consideration

1. [52]

   I have explained above that I am concerned that the amendments that Mr Thynne proposes to make to the prayers for relief in his statement of claim, which primarily take the form of identifying the trust as a constructive trust, do not cure the substantive deficiency in his claim that he has an existing beneficial interest in the Property, and really involve an ineffective change in language. Mr Thynne seems to assert that because Ms Sheringham accepted the inherited property on the basis of the restrictions in the Memorandum of Wishes as to what she could do with the property, her conscience became impressed with the obligation to comply with the Memorandum of Wishes upon the death of the deceased, and, from that time, she became a constructive trustee owing a personal obligation to account to Mr Thynne that was not attached to the property. The step that I cannot accept, even though I accept that fiduciary obligations may have been imposed upon Ms Sheringham at the date of the deceased’s death, is that any event has happened that has converted those obligations into those of a trustee, of whatever nature, of the Property in favour of Mr Thynne. The submissions simply do not address the reality that the authorities establish that, in the absence of an order of the Court imposing a trust on the survivor, a trust does not crystallise until the survivor’s death.

2. [53]

   I acknowledge the restrictions that apply to the Court in respect of the final determination of contested issues of law on an application for summary dismissal of the plaintiff’s case. However, I think it is necessary for me to state the legal position, as I understand it, in order to explain the course that I will follow on this application. I put aside cases where the obligations of parties to mutual wills are not subject to any restrictions on the survivor’s use of the inherited property during the survivor’s lifetime. In cases of that type, the metaphor of the ultimate beneficiary’s interest in the inherited property being a floating one that crystallises on the death of the survivor is intelligible. Upon the survivor’s death, there is nothing further to be done and the survivor has either maintained the survivor’s will in accordance with the compact with the other testator, or the survivor has not. Upon the survivor’s death, a trust may spring up that is imposed upon the assets in the survivor’s estate together with an entitlement in the beneficiary to additional equitable relief binding the estate to restore the effect of the original compact between the makers of the mutual wills. In cases such as the present, where the original compact imposes restrictions on the manner in which the survivor is entitled to use the inherited property, the floating nature of the beneficiary’s interest is constrained by the terms of the compact. The nature of that constraint will depend upon the terms of the compact, which may not readily be determinable where the compact is expressed in vague or contradictory terms. Nonetheless, it will fall to the Court to determine by a process equivalent to the construction of contracts what the precise nature of the restrictions are that have been imposed on the use of the inherited property by the survivor. As the testator has died having provided consideration for the compact in the form of the testator’s own will, equity imposes on the conscience of the survivor the duty to comply with the compact. Equity recognises the standing of the ultimate beneficiary to enforce the compact, notwithstanding that the beneficiary was not a party to it. That may be in recognition that the testator’s right to the enforcement of the compact may only be exercised by the intended beneficiary. Equity may make its usual remedies available to the beneficiary to correct the survivor’s breaches of the compact during the life of the survivor. Equity may declare the terms of the compact. It may issue an injunction to restrain further breaches, or make a mandatory order that obliges the survivor to correct existing breaches. The availability of those remedies will not give the beneficiary an equitable interest in the inherited property. The question is: may there be circumstances where conduct of the survivor in breach of the compact does give the beneficiary a trust interest in property?

3. [54]

   On an application such as this, it would be wrong for the Court to give a definite answer to this question. The authorities clearly establish that the beneficiary does not have a trust interest in the inherited property from the date of the death of the testator. In my view, during the life of the survivor, before the crystallisation of a trust on the survivor’s death, no breach of the compact by the survivor will have the automatic effect in equity that the remaining inherited property is impressed with a trust in favour of the beneficiary. Although a breach will give rise to an entitlement in the beneficiary to appropriate equitable remedies, those remedies do not extend automatically to a trust interest in the whole of the remaining inherited property. It is wrong in this context to use the word “crystallisation” in relation to the beneficiary’s equitable rights. The automatic creation of a trust in equity would destroy the residual effect of the compact, and have a punitive effect on the survivor, contrary to the principles of equity. Equity will prevent further breaches and correct the effect of existing ones, but it will not impose what is sometimes called an institutional constructive trust against the survivor over the remaining inherited property.

4. [55]

   In my view, that conclusion is not inconsistent with the properly understood intent of the plurality in the Court of Appeal on the caveat application, where they said at [12]: “… As a “claim to have an equitable interest”, the mere equity may, depending on all the circumstances, “crystallise” into an equitable interest once the beneficiary can establish a claim for equitable relief arising out of a fraud by the survivor or to enforce the underlying agreement between the survivor and the testator. The obligations will crystallise into a trust over the impugned assets the subject of the obligations once those obligations are breached, which may not be until the death of the survivor if the survivor does not leave a will consistent with (here) the Memorandum of Wishes…” As noted above, the plurality stated at [13] that the beneficiary would not have “a specific equitable, proprietary interest in particular assets”. The conclusion reached by the plurality as stated at [15] is plainly inconsistent with their Honours accepting that, in equity, a breach of the compact by the survivor would crystallise a trust in favour of the beneficiary over the remaining inherited assets.

5. [56]

   The possibility should not be excluded that, in a relatively extreme case, equity might impose a remedial constructive trust on the survivor, perhaps in cases where the breach of the compact by the survivor can truly be characterised as a repudiation of the compact that puts the rights of the beneficiary inheriting at the date of the survivor’s death in substantial jeopardy. On no view does the present case justify the imposition by the Court of a constructive trust over the whole of the remaining inherited property. It is not necessary to consider this possibility further. Were it available, Mr Thynne would not be entitled to seek a declaration that a constructive trust existed, but he would be required to apply for an order imposing the trust. Until that order was made, Mr Thynne would not have a trust interest in the property.

6. [57]

   On that basis, the Court will make an order summarily dismissing prayers 20 to 25 of the prayers for relief in the statement of claim, because all of those prayers depend upon there being in existence a present trust interest in favour of Mr Thynne over the Property. The Court will also dismiss Mr Thynne’s application for leave to amend those prayers. Consequently, the Court will also dismiss Mr Thynne’s application for leave to add the additional claims for relief in pars 85A and 85AB of the draft amended statement of claim.

7. [58]

   Strictly, as the effect will be that all of Mr Thynne’s prayers for relief concerning the Property will be dismissed, all of his allegations in pars 63 to 64 and the restatement of the entitlement to the relief claimed in the prayers in par 85 should be struck out, as they will no longer allege material facts relevant to a claim for relief in the proceedings. Mr Thynne’s application for leave to amend those paragraphs should also consequently be dismissed.

8. [59]

   I am reinforced in my view that the orders that I have just foreshadowed are appropriate on this application by the circumstance explained above that Mr Thynne obtained leave to appeal in the caveat application by informing the Court of Appeal that its determination of the appeal would settle the question of whether Mr Thynne had an equitable proprietary interest in the Property, and further, that Ms Sheringham consented to leave being granted on that basis. Subject only to the possibility that it should not be held against Mr Thynne that he was not aware that part of the money borrowed by Ms Sheringham had been used to buy the farm from her parents, all of the breaches of the Memorandum of Wishes upon which Mr Thynne has relied in this case were known and were before the Court, both at first instance and in the Court of Appeal. It is not appropriate that Mr Thynne should be permitted to claim that he has a present beneficial interest in the Property on a different conceptual basis than he apparently relied upon for the purposes of the caveat application.

9. [60]

   The flaw in Mr Thynne’s forensic position is that he has bound himself to the remedy of a declaration of the existence of a constructive trust over the Property, and has now sought to extend that claim by seeking an order that Ms Sheringham be replaced as trustee. He has not merely sought declarations concerning the true effect of the restrictions imposed upon Ms Sheringham by the Memorandum of Wishes. He has not sought injunctive relief to prohibit further alleged breaches or to correct the effect of existing breaches. In relation to the purchase by Ms Sheringham of her parents’ farm, that claim has not yet been properly pleaded. It may be that, if the purchase of that farm was a breach of the obligations imposed by the Memorandum of Wishes, and the effect was to place the value of that farm outside the intended effect of the will executed by Ms Sheringham at the time the mutual wills were made, equity would impose a constructive trust over that property, or make some other appropriate order that would be effective to make good Ms Sheringham’s obligations. I say nothing about Mr Thynne’s entitlement to any such relief. The only point to be made is that he has not sought it.

10. [61]

    It is neither necessary nor appropriate for the Court to decide Ms Sheringham’s submissions that Mr Thynne’s claim that the Memorandum of Wishes excluded Ms Sheringham’s right to grant a mortgage over the Property and that Ms Sheringham was only entitled to expend money on the Farm, limited to its physical property, and not the farming business that she inherited from the deceased are hopeless and doomed to fail. The views of Hammerschlag CJ in Eq and Basten AJA may be noted. Neither judge purported to finally decide these questions in the interlocutory proceedings that were before them. The same is true for me, and I have foreshadowed orders that would summarily dismiss the claims for relief that require the questions to be determined.

Orders

1. [62]

   Given the conceptual complexity of these reasons, I will repeat the essence of the conclusions that I have reached, in order to explain the orders that I will make. Mr Thynne has persisted with his claim that Ms Sheringham holds the Property on an existing trust for Mr Thynne and Patrick Thynne. The relief claimed is based upon the validity of that claim. Mr Thynne has contended that it is proper to describe Ms Sheringham as trustee under an existing constructive trust even though that only imposes fiduciary duties upon her. Mr Thynne's difficulty is that it is inescapable that some of the relief that he seeks and some of the allegations of fact that he makes are inconsistent with the proposition that Mr Thynne is only seeking to enforce fiduciary duties and that he does not claim a present equitable interest in the Property. Mr Thynne does not seek relief limited to requiring Ms Sheringham to conform with fiduciary duties arising out of the Memorandum of Wishes, or to restore the consequences of any breach. He seeks an account from Ms Sheringham before her death. As I have explained above, many of the allegations of fact, including proposed amended allegations, would be relevant to a claim for relief against breaches of fiduciary duty, but that relief is not sought. Some of the allegations of fact are out and out allegations dependent upon Ms Sheringham at present being a trustee of the Property.

2. [63]

   In these circumstances, I have not found it easy to decide what orders should be made. I have decided that the appropriate course is to dismiss the prayers for relief that on a fair reading are based upon the claim that Ms Sheringham holds the Property on a presently existing trust. I will then strike out the allegations of fact that are also dependent on the existence of a present trust. I will decline leave to make amendments to those prayers and allegations of fact. I will grant leave to make the balance of the amendments sought by Mr Thynne. I acknowledge that, arguably, the result may be that there will be allegations of fact that are not relevant to a claim for relief. I will take this course because the Court has not received detailed submissions concerning what allegations of fact should be permitted, having regard to the prayers for relief that will survive. Realistically, it is also probable that the contest about the pleading of Mr Thynne's claim will not be completely resolved by this judgment.

3. [64]

   I consider that the costs of the notices of motion should be dealt with on the basis that Ms Sheringham has substantially succeeded in resisting Mr Thynne's notice of motion seeking leave to amend his statement of claim, and has succeeded on her notice of motion seeking the dismissal of Mr Thynne's claim for relief based upon Ms Sheringham holding the Property on trust. Ms Sheringham is entitled to an order that Mr Thynne pay her costs of those notices of motion.

4. [65]

   As to Ms Sheringham's notice of motion concerning the subpoena that was served on Westpac Banking Corporation, she should be ordered to pay Mr Thynne's costs as she elected not to proceed with the notice of motion.

5. [66]

   The Court's orders are:

   1. (1)

      Order that the claims for relief in prayers 20 to 24 of the plaintiff's statement of claim be dismissed.

   2. (2)

      Order that the plaintiff's notice of motion filed on 12 October 2023 be dismissed insofar as it seeks leave to amend prayers 20 and 22 of the plaintiff's statement of claim.

   3. (3)

      Order that the plaintiff's notice of motion filed on 12 October 2023 be dismissed insofar as it seeks leave to amend the plaintiff's statement of claim by adding pars 75A, 81A, 81AB, 81AC, 85A and 85AB.

   4. (4)

      Order that pars 82 and 83 be struck out of the plaintiff's statement of claim.

   5. (5)

      Otherwise grant leave to the plaintiff to amend the plaintiff's statement of claim in accordance with the leave sought by the plaintiff in his notice of motion filed on 12 October 2023.

   6. (6)

      Otherwise dismiss the defendant's notice of motion filed on 16 October. 2023.

   7. (7)

      Dismiss the defendant's notice of motion filed on 25 October 2023.

   8. (8)

      Order the plaintiff to pay the defendant's costs of the plaintiff's notice of motion filed on 12 October 2023 and the defendant's notice of motion filed on 16 October 2023.

   9. (9)

      Order the plaintiff to pay the defendant’s costs thrown away by the grant of leave to amend the plaintiff’s statement of claim.

   10. (10)

       Order the defendant to pay the plaintiff's costs of the defendant's notice of motion filed on 25 October 2023.

   11. (11)

       Stand the proceedings into the Registrar's list on 6 December 2023 for directions.