In the matter of Australian Property Custodian Holdings Limited (in liquidation) (receivers and managers appointed) (as responsible entity of the Prime Retirement Aged Care Property Trust) [2012] NSWSC 679

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Australian Property Custodian Holdings Limited (in liquidation) (receivers and managers appointed) (as responsible entity of the Prime Retirement Aged Care Property Trust) [2012] NSWSC 679 Hearing dates: 22 May 2012 Decision date: 21 June 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Statement of Claim struck out. Leave granted to file Amended Statement of Claim. Proceedings dismissed as against Second Defendant. Plaintiff to pay costs of and incidental to the motions heard. Parties to bring in agreed short minutes to give effect to judgment or competing drafts and short submissions. Catchwords: PRACTICE AND PROCEDURE - Strike out applications - Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 - Power of court to dismiss proceedings or claims and when such power may be exercised. CONTRACTS - Privity - Qualification to privity rule that a party to a contract may hold, on trust for a third party, the benefit of a contractual promise to confer a benefit on that third party - Whether evidence suggests case based trust of promise has prospects of success. Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56(1), 58(1), 58(2) - Retirement Villages Act 1999 (NSW) - Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Cases Cited: - Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 - Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 - Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 - Birmingham v Renfrew (1937) 57 CLR 666 - Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 - Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 - Ciavarella v Polimeni [2008] NSWSC 234 - Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 - Cypjayne Pty Ltd v Rodskog [2009] NSWSC 301 - Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 - General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 - Layne Christensen Co v Stanley [2005] WASC 169 - Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 - Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361 - Shaw v New South Wales [2012] NSWCA 102 - Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607 - Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 - Stanley v Layne Christensen Co [2006] WASCA 56 - Tasker v Small (1837) 3 My & Cr 63; 40 ER 848 - Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 - Tweed Shire Council v Minister Administering Crown Lands Act [1996] NSWSC 423; (1996) 92 LGERA 80 - Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43 - Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 Category: Principal judgment Parties: Brentwood Village Limited (Plaintiff) Australian Property Custodian Holdings Limited (in liquidation) (receivers and managers appointed) (First Defendant) Industry Funds Management (Nominees 2) Pty Limited (Second Defendant) Prime Retirement Aged Care Property Trust (Third Defendant) Brentwood Village Management Pty Limited (Fourth Defendant) Representation: Counsel: J.T. Johnson (Plaintiff) No appearance (First Defendant) T.M. Thawley (Second Defendant) No appearance (Third Defendant) J.C. Hewitt (Fourth Defendant) Solicitors: DC Balog & Associates (Plaintiff) No appearance (First Defendant) Arnold Bloch Leibler (Second Defendant) No appearance (Third Defendant) Clifford Chance (Fourth Defendant) File Number(s): 11/271554

Judgment 1By Amended Originating Process filed on 7 November 2011, the Plaintiff, Brentwood Village Limited ("BVL") seeks relief as against Australian Property Custodian Holdings Limited (administrator appointed) (receivers and managers appointed) ("APCH"), Industry Funds Management (Nominees 2) Pty Limited ("IFM"), Prime Retirement Aged Care Property Trust ("Trust") and Brentwood Village Management Pty Limited ("BVM"). 2By Amended Interlocutory Process filed on 22 May 2012, BVM seeks orders under Uniform Civil Procedure Rules (2005) (NSW) rr 13.4 and 14.28 that the whole of BVL's claim against it be struck out or dismissed. By Amended Interlocutory Process filed on 22 May 2012, IFM also seeks orders under UCPR rr 13.4 and 14.28 that BVL's claim against it be dismissed or alternatively be struck out. BVL conceded, in the course of submissions before me, that its claim as against BVM and IFM required amendment and also conceded that, if I held that its claim against BVM should be struck out or dismissed, then its claim against IFM should also be struck out and dismissed. BVL also conceded that it should be ordered to pay any costs thrown away by reason of any amendments that it was permitted to make. Background 3By way of background, prior to the sale of the Brentwood Retirement Village on 1 May 2007 (to which I will refer below), BVL issued redeemable preference shares to persons taking out occupation in the Brentwood Retirement Village which became redeemable, under BVL's constitution, in circumstances including an occupant's vacating the premises which he or she occupied in the Brentwood Retirement Village. BVL contends that the amount of the value of redeemable preference shares issued by it constituted an "ingoing contribution" as defined in the Retirement Villages Act 1999 (NSW) by each holder of that redeemable preference share. 4On 1 May 2007, BVL contracted to sell the Brentwood Retirement Village for a consideration of $39 million to APCH in its capacity as responsible entity of the Trust. The Sale Contract between BVL and APCH contained detailed provisions, in clause 50, dealing with BVL's obligation in respect of redemption of redeemable preference shares. By clause 50.1, the parties acknowledge that, despite the sale of the Brentwood Retirement Village to APCH under the Sale Contract, BVL retained the obligation to redeem the redeemable preference shares at a value calculated by reference to its constitution. APCH agreed, as responsible entity for the Trust, to indemnify BVL and undertook to reimburse it for an amount equal to the sum paid on redemption of such preference shares where its obligation to redeem those shares arose after completion of the Sale Contract. 5By clause 50.2 of the Sale Contract, APCH agreed to provide a bank guarantee to BVL on or before completion of the Sale Contract. The Sale Contract contemplated that, if BVL called upon the bank guarantee, APCH must top up that bank guarantee so that the amount available to BVL under the bank guarantee would be $5 million at all times and that the bank issuing that guarantee would agree with BVL to top up the bank guarantee within 7 days of demand so that it would be $5 million at all times. That clause expressly contemplated the external administration of APCH, providing that the benefits of the bank guarantee would continue even if APCH was placed in external administration. BVL was also permitted to lodge a caveat on the Sale Contract to protect its rights under clause 50 of the Sale Contract. The Sale Contract also provided that, if APCH became externally administered, APCH agreed to lease to BVL the unit the subject of redeemed shares on the same terms as the lease to the resident, but with an extension of the term to 40 years and with the right of BVL to sub-lease the premises to any resident. By clause 50.9 of the Sale Contract, if APCH dealt with the property the subject of the Sale Contract, it was required to procure that its agreement with the transferee would include the same obligation and terms in favour of BVL to be performed by the buyer as were contained in clause 50 of the Sale Contract. 6APCH's obligations under the Sale Contract were subsequently varied by deed dated 31 August 2007 to exclude the obligation for the provision of a top up of the bank guarantee under clause 50 of the Sale Contract and the Sale Contract was completed on the same date. 7Also on 31 August 2007, APCH leased Brentwood Retirement Village to BVM under the terms of a lease between APCH as lessor and BVM as lessee (to which BVL is not party) ("Lease") and entered an associated Loan Agreement between BVM as lender and APCH as borrower, which is schedule 2 to the Lease. 8Clause 5.3 of the Lease provided that: "Subject to clauses 16.1(c) and 17.12, [BVM] must pay, no later than seven (7) days before the due date for payment, Refundable Ingoing Contributions to Residents. The term "Refundable Ingoing Contribution" was in turn defined as the net amount payable to a resident upon the termination of a Resident Agreement, subject to certain adjustments. Clause 16.1(c) of the Lease relevantly provided that: "Subject to repayment of that amount by [APCH] under the Loan Agreement, [BVM] must pay all Refundable Ingoing Contributions when due and payable to the Residents by [APCH] as owner under the Resident Agreement." By clause 17.12 of the Lease, the parties purported to acknowledge that BVM's obligation to pay monies to residents or former residents (including the Refundable Ingoing Contribution) was, relevantly, in accordance with clause 16.1(c) of the Lease and arose in contract and not by operation of the Retirement Villages Act as an owner or operator. BVL correctly points out that that acknowledgement is not determinative of the true characterisation of BVM's obligation for the purposes of the Act. 9Clause 35.1 of the Loan Agreement in turn provides for repayments of a loan by BVM to APCH with effect that: "During the Term, [APCH] must repay the Advance by instalments, each instalment being due and payable at the time [BVM] is required under the Lease to repay the amount due by [APCH] under a Resident Agreement to a Resident who has vacated the Village or who has terminated a Resident Agreement." 10There are some complexities as to the proper construction of clauses 5.3 and 16.1(c) of the Lease and clause 35.1 of the Loan Agreement. In particular, there is a question whether BVM's obligation to make payment of the Refundable Ingoing Contribution under that clause requires such payment to be made prior to any repayment by APCH under the terms of the Loan Agreement, or whether BVM's obligation under that clause is conditional upon APCH's performance of the corresponding obligation under the Loan Agreement. It is not necessary to address that complexity for the purposes of this application. BVM's application - the relevant principles 11I should first deal with the application brought by BVM since, as noted above, BVL concedes that, if that application is successful, then the proceedings against IFM should also be struck out or dismissed. The Court's power to dismiss proceedings or claims made in them arises under r 13.4 of the UCPR which relevantly provides that: "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: ... (b) no reasonable cause of action is disclosed ... the court may order that the proceedings be dismissed generally or in relation to that claim." The Court's power to dismiss proceedings under this rule is to be exercised with caution but may be exercised where a plaintiff's case is so weak that it would be futile to permit the proceedings to go to trial: see Ritchie's Uniform Civil Procedure NSW at [13.4.15]. 12The relevant principles have been identified in the case law. In Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 98-100, Higgins J observed that the power to strike out a claim: "... has been held not to apply except in plain or obvious cases; and if there is a point of law that requires any serious discussion, it should be set down for argument: Hubbuck v Wilkinson. The pleading must be "obviously frivolous or vexatious, or obviously unsustainable," if it is to be struck out (per Lindley LJ in Attorney General of the Duchy of Lancaster v London and North Western Railway Co). The pleading must be "so clearly frivolous that to put it forward would be an abuse of the process of the Court": Young v Holloway." 13In Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, the High Court exercised the power to summarily dispose of proceedings. However, the exceptional character of the jurisdiction to do so was emphasised by Dixon J who observed that: "It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. But the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts. Further, it is not limited to cases where there is no dispute of fact." 14Similarly, in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944, Cross J observed that "the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases" and that "fatal defects in the plaintiff's case must be very clear before the court will intervene in this fashion". In Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607, after undertaking a comprehensive review of the case law, Rothman J observed that the Court has an inherent jurisdiction, described in the rule, to strike out a plaintiffs' case because it is so weak and/or because it depends upon facts, which, on the plaintiffs' case, cannot be proven, but observed that the Court would take that course "only in exceptional circumstances and only where it came to the view that to proceed further would be futile." 15UCPR r 14.28 in turn permits the Court to order that the whole or any part of a pleading be struck out if the pleading discloses, relevantly, no reasonable cause of action or defence or has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of the process of the Court. The test for a strike out application is that indicated by Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 where Gaudron, McHugh, Gummow and Hayne JJ observed at [57]: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." (footnote omitted) That formulation has been adopted in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] and Shaw v New South Wales [2012] NSWCA 102. 16In exercising the Court's power to strike out a Statement of Claim under UCPR r 14.28, the Court must also give effect to the overriding purpose stated in s 56(1) of the Civil Procedure Act 2005 (NSW), namely "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings". Section 58(1) requires the Court to act in accordance with the dictates of justice, and s 58(2) requires that the overriding purpose specified in s 56(1) be taken into account: Shaw v New South Wales at [128]ff. BVM's application - privity of contract 17In the Amended Originating Process, BVL seeks, as against BVM: "1A. A declaration that [BVM] is obliged to indemnify [APCH] as responsible entity of the Prime Retirement Aged Care Property Trust, the First Defendant, as Lessee under Lease dated 31 August 2007 in respect of all liability arising in respect of the obligation referred to in paragraph 1 above." The reference to paragraph 1 is to an obligation of APCH, as responsible entity of the Trust, to indemnify BVL in respect of redemptions of redeemable preference shares issued by it to occupants of the Brentwood Retirement Village in accordance with provisions of clause 50 of the Sale Contract to which I have referred above. BVL also seeks an order that, relevantly, BVM specifically perform its obligation to satisfy the indemnity referred to in paragraph 1A of the Amended Originating Process. 18In paragraph 4 of the Amended Originating Process, BVL seeks an order that, relevantly, BVM account to it: " in respect of all amounts received by it representative of principal monies paid by new occupiers of units in the Brentwood Retirement Village represented by it a unit in respect of which a former occupier has been issued redeemable preference shares by [BVL] and in respect of which a request for redemption has been or is received by [BVL] with the terms upon which those shares were issued [sic]." This paragraph is difficult to follow and, in any event, the Statement of Claim does not plead any basis for such a claim. 19Mr Hewitt, who appears for BVM, draws attention to the fact that the matters pleaded against it in the Statement of Claim are limited, to say the least. Relevantly, by clause 16 of the Statement of Claim, BVL contends that it was an express term of the Lease that BVM "would satisfy the obligations of [APCH] as responsible entity for [the Trust] in respect of all Ingoing Contributions of "Residents" of the Brentwood Retirement Village. Paragraph 17(c) of the Statement of Claim in turn pleads that BVM is an "operator" of the Brentwood Retirement Village for the purposes of the Retirement Villages Act. Paragraph 40 of the Statement of Claim pleads, without further explanation, that BVL is entitled from BVM: "... to payment and or indemnity of amounts in respect of which redemption requests have been validly made to it in respect of redeemable preference shares issued by it in respect of residence [sic] of the Brentwood Retirement Village". 20BVM contended that, first, the claim against it should be struck out because BVL was not a party to the Lease and could not sue on it. BVL conceded that it was not party to the Lease but contended that the promise made by BVM to APCH under clause 5.3 of the Lease was held on trust for BVL, in accordance with the principles recognised in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107. 21BVL summarised the basis of that contention in written submissions as follows: "... Having regard to the contractual obligations entered into between [BVM] and [APCH] evidenced by the Lease dated 31 August 2007, the Loan Agreement between the same parties of the same date; and the Management Agreement between the same parties of the same date, [APCH] holds the benefit of the covenants given by [BVM] on trust for the purposes of enabling satisfaction of the indemnity set out in the Contract for Sale of Land dated 1 May 2007. There appears to be no question that [BVM] is the Lessee of the relevant property represented by the Brentwood Retirement Village ... and that it has gained substantial advantages as a consequence of the Lease, Loan Agreement and Management Agreement entered into. These were clearly entered into with a view to the satisfaction of entitlements of residence [sic] and their legal personal representatives to refunds of Ingoing Contributions under the Retirement Villages Act 1999 (NSW) and/or the contractual dealings existing between them and [BVL] prior to 31 August 2007. They include for relevant purposes the liability of [BVL] to satisfy obligations under the terms of the issue of redeemable preference shares. In those circumstances it is submitted that the obligation to indemnify existing under special condition 50 is capable of being enforced by [BVL] and [APCH] holds the benefit of the promises of [BVM] in relation to the satisfaction of those claimed entitlements on trust for [BVL]." 22It is plain that the Statement of Claim, as presently pleaded, is not sufficient to support these contentions, so far as they involve factual allegations as to the benefits obtained by BVM for the purpose of entry into the relevant agreements. None of the material facts referred to in these submissions which might go to establish the asserted trust of the promise are pleaded. This is sufficient to require that the Statement of Claim in its present form as against BVM should be struck out. The question is, however, whether leave to replead should be granted to BVL, so far as the pleading is attacked on the basis of privity of contract and defended by reference to the alleged trust of the promise. BVM contends that such leave should not be granted because BVL could not succeed in establishing the pleaded claim. This depends on whether a properly pleaded case of the kind which BVL seeks to advance could succeed. 23There is a qualification to the principle of privity that a party to a contract may hold, on trust for a third party, the benefit of a contractual promise to confer a benefit on that third party: Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd above; Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 at 368-375; Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 at [72]. The Court should not be reluctant to find that such a trust exists where parties make a contract for the benefit of the third party: Wilson v Darling Island Stevedoring above at CLR 67 (Fullagar J); Trident v McNiece above at CLR 146-147 (Deane J); Mizzi v Reliance Financial Services Ltd at [72]. 24In Trident v McNiece at CLR 120, Mason CJ and Wilson J pointed to several authorities in which the Courts have inferred the existence of a trust from the circumstance that a contract was made for the benefit of a third party. Their Honours observed that: "the courts will recognize the existence of a trust when it appears from the language of the parties, construed in its context, including the matrix of circumstances, that the parties so intended. We are speaking of express trusts, the existence of which depends on intention. In divining intention from the language which the parties have employed the courts may look to the nature of the transaction and the circumstances, including commercial necessity, in order to infer or impute intention ..." Their Honours nonetheless noted that there will be cases where a third party has no remedy because there is no sufficient intention to create a trust (at CLR 121). Their Honours (at CLR 121) placed emphasis on the intention of the promisee, here APCH. Deane J observed (at CLR 147) that the requisite intention to create a trust: "should be inferred if it clearly appears that it was the intention of the promisee that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity's requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promisee". His Honour observed at CLR 148 that the question whether a particular contract itself creates a trust of the benefit of one or more of the promises which it contains is primarily a question of the construction of the terms of the contract, which must be construed in context. His Honour had regard (at CLR 149) to the intention of both contracting parties. 25There is nothing on the face of the Lease or Loan Agreement to indicate any intention of APCH, or indeed BVM, to confer any benefit on BVL and there is no reference to BVL in the Lease or Loan Agreement. This, like Winterton Constructions, is not a case where the trust is apparent on the face of the relevant agreement, nor is the Lease or Loan Agreement the result of private family dealings where imprecision of expression might be expected, nor is there a pattern of business dealings which would support the existence of the trust. The detail of the Lease and Loan Agreement tends against the inference which BVL seeks to have drawn since, if APCH or BVM had intended to confer the rights on BVL which it claims, then they could readily have provided them in the terms of the Lease and Loan Agreement. There was no obvious reason for APCH to displace its own interests and its obligations to the trust in favour of BVL, where BVL had already negotiated detailed contractual provisions to protect its own interests under the Sale Contract, including not only the requirement for provision of the bank guarantee, but also provisions which specifically addressed its rights in the event of an external administration of APCH. 26Two further matters strongly point to the absence of any intent on the part of APCH to create such a trust of the rights under the Lease in favour of BVL. First, as Mr Hewitt points out, clause 28 of the Lease provided that APCH entered into the Lease in its capacity as trustee and responsible entity of the Trust and in no other capacity. While that clause was no doubt intended to make clear that APCH entered into the agreement as responsible entity of the Trust and not in its personal capacity, it also made clear that APCH did not enter into the agreement in the capacity of trustee of any other trust, such as a trust for BVL. Second, there was good reason for APCH not to intend to hold the relevant promise on trust for BVL, since its doing so could create a conflict of duty between its obligations owed as the trustee and responsible entity of the Trust and any obligations owed to BVL. Such a conflict would be acute if its obligations owed to BVL required it to enforce clause 5.3 of the Lease for the benefit of BVL, in circumstances where it may be in the interests of the Trust not to do so, for example because BVM was prepared to provide a commercial benefit to the Trust in consideration of the waiver or modification of those rights. So far as the intention of BVM was relevant, the Lease and Loan Agreement do not indicate that BVM had any intention to place itself in a position where rights against it would be vested in a party other than APCH. 27In Winterton Constructions, Gummow J was prepared to strike out a pleading alleging a contractual promise was held on trust for Winterton Constructions. On the other hand, in Layne Christensen Co v Stanley [2005] WASC 169 at [19], Sanderson M recognised the strength of arguments against the existence of a trust of the promise in the particular case, but observed that: "While I appreciate the strength of those arguments, it seems to me that it is not proper in a strike out application to refuse the plaintiffs the chance to argue their claim. True it is that the plaintiffs' case rests on the wording of the Consulting Agreement and it may well be the case that no extrinsic evidence will be permissible to explain the terms of that agreement. But a pleading summons is not the occasion on which to make that determination. It may be that evidence will be led of the surrounding circumstances which explains the wording of the contract was intended to benefit future assignees. All these arguments are matters for trial and do not warrant the paragraphs complained of being struck out." Sanderson M's decision was affirmed by the Court of Appeal of the Supreme Court of Western Australia [2006] WASCA 56. 28The evidence which is presently before me suggests that BVL's case based on the existence of a trust of the promise has limited prospect of success, even if it were properly pleaded. In this case, as in Winterton Constructions, the fact that BVM's compliance with its obligations under the Lease may have assisted APCH's compliance with its obligations under the Sale Contract may nonetheless leave BVL some distance from making good a case of a trust in its favour of any rights of APCH against BVM under the Lease. However, I consider that I should allow BVL a further opportunity to properly plead that claim, before any determination is reached which would deprive it of an opportunity for its claim to be determined on its merits. It is, of course, a matter for BVL to determine whether it wishes to take up that opportunity, at the risk of further liability in costs to BVM if that claim is ultimately struck out or is ultimately unsuccessful at a final hearing. BVM's application - other bases 29BVM also contends that BVL's claim for an order for specific performance of the obligation under the Lease is not maintainable because the rule in Tasker v Small (1837) 3 My & Cr 63; 40 ER 848 has effect that the only proper parties to a suit for specific performance are the parties to the contract, and that rule remains good law in New South Wales: Tweed Shire Council v Minister Administering Crown Lands Act [1996] NSWSC 423 (1996) 92 LGERA 80; Ciavarella v Polimeni [2008] NSWSC 234 at [4]-[10]; Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361 at [28]-[29]. 30I would not summarily dismiss the claim by reference to the rule in Tasker v Small, if the claim were properly pleaded by reference to a trust of the promise. That rule is questioned in RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies 4th ed, LexisNexis Butterworths, 2002 at [20-245] and the contrary position may be arguable, at least at an appellate level. In any event, the beneficiary of a trust may sue in its own name, joining the trustee and other beneficiaries as defendants, including, in the case of a contractual promise, suing the promisor if the trustee refuses: Birmingham v Renfrew (1937) 57 CLR 666 at 686; Wilson v Darling Island Stevedoring above at CLR 67 (Fullagar J); Trident v McNiece above at CLR 146 (Deane J). There is at least one example in this Court where an order was made compelling the promisor to perform its obligations on the suit of the beneficiary of a trust of a contractual promise: Mizzi v Reliance Financial Services Pty Ltd above. 31BVM also contended that BVL's claim against it was an impermissible attempt to obtain an advisory opinion as to the obligations of BVM to APCH because there was no controversy between BVM and APCH to be quelled and BVL had no real interest in any such controversy: Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 at [355]-[357]; Cypjayne Pty Ltd v Rodskog [2009] NSWSC 301. In my view, this contention could not succeed if the claim were properly pleaded by reference to a trust for the promise. There is plainly a controversy between BVL and BVM to be resolved in that regard. 32BVM also contended that, even if BVL had standing, its claim to relief was bound to fail because the obligation in clause 5.3 of the Lease was conditional upon BVM receiving the relevant funds from APCH as a repayment of the advance under the Loan Agreement. I would not have held that this matter warranted summary dismissal, although it is an argument that might well have succeeded at a hearing, since the complexities of the relevant clauses would be matters for trial. IFM's application 33The solicitors for IFM have, in correspondence over a lengthy period since October 2011, identified concerns as to the basis of BVL's claim against IFM including seeking clarification of the legal basis of the causes of action and the relief sought. Particular concerns as to that issue were set out in a letter dated 18 November 2011; particulars of the claim were sought by letter dated 13 December 2011; particulars were provided by BVL's solicitors by letter dated 25 January 2012, and further particulars were sought by letter dated 1 February 2012. Orders were subsequently made for BVL to provide those particulars and, it appears, not complied with. That course of correspondence is hardly satisfactory, particularly in circumstances where the claims against IFM are now, in substance, abandoned. 34BVL had initially sought declaratory relief against IFM. In its submissions before me, it made clear that it did not press that claim, nor did it press the paragraphs of the Statement of Claim which sought to support that claim. BVL supported the joinder of IFM on the basis that IFM: "is a proper party to the present proceeding having regard to the security that it holds and the admitted issues relating to security priorities that exist in respect of the indemnities and entitlements of resident claimants who have not made claims prior to the commencement of the proceedings." 35However, the relief sought by BVL does not, on its face, impact on IFM's rights as a secured creditor. IFM contended before me that it was not affected by the grant of that relief and BVL did not identify any direct impact of the grant of relief on IFM in submissions before me. In these circumstances, it does not seem to me that IFM is a proper party to the proceedings where BVL seeks no relief against it, and the proceedings against it should be dismissed. Orders and costs 36I will, therefore, make orders striking out the present Statement of Claim, with leave for BVL to file an Amended Statement of Claim against BVM and any other proper parties within a short time, and dismiss the proceedings against IFM. BVL should pay the costs of and incidental to the Motions heard before me. I direct the parties to bring in agreed Short Minutes of Order to give effect to this judgment within 7 days or, if no agreement can be reached, their respective drafts of those short minutes and short submissions in respect of the differences between them.

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Amendments 17 July 2012 - typographical errors Amended paragraphs: 3 and 33 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2012