Bird v Bird [2010] NSWSC 303

Bird v Bird [2010] NSWSC 303

The cross-claim and the challenged paragraphs of the defences disclose an arguable cause of action or defence in equity and should not be disposed of summarily. Issues regarding knowing receipt, constructive trust, and the Plaintiff's status as a 'primary wrongdoer' or recipient of trust-derived property are matters for trial, not for summary dismissal. The pleadings are not frivolous or vexatious in the circumstances.

Parties
Plaintiff: Deborah Michelle Bird; First Defendant: Warrick Lindsay Bird; Second Defendant: Rodney David Bird; Third Defendant: Herbert James Cannington; Fourth Defendant: Mona Ethel Bird
Jurisdiction
Australia
Judgment Date
21 April 2010
Procedural Posture
Application for Summary Dismissal/strike Out / Interlocutory (procedural Application Before Trial)
Outcome
Plaintiff's amended notice of motion dismissed with costs.
Legal Topics
Summary Dismissal, Striking Out Pleadings, Constructive Trusts, Knowing Receipt, Indefeasibility of Title, Executors and Beneficiaries
Equity Trusts and Estates Civil Procedure Summary Dismissal Striking Out Pleadings Constructive Trusts Knowing Receipt Indefeasibility of Title +1 more

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Parties

Deborah Michelle Bird

Plaintiff

Warrick Lindsay Bird

First Defendant

Rodney David Bird

Second Defendant

Herbert James Cannington

Third Defendant

Mona Ethel Bird

Fourth Defendant

Procedural Posture

Application for Summary Dismissal/strike Out / Interlocutory (procedural Application Before Trial)

Legal Issues

  1. 1 Whether the cross-claim and certain defences should be summarily dismissed or struck out as disclosing no reasonable cause of action, as frivolous or vexatious or otherwise an abuse of process
  2. 2 Whether the pleadings in the cross-claim allege facts sufficient to support a claim against the Plaintiff in respect of property allegedly transferred to her resulting from a breach of fiduciary duty (knowing receipt or acquisition of improvements)
  3. 3 Whether and in what circumstances a constructive trust may be imposed as an exception to indefeasibility of title (i.e., in personam exception)

Ratio Decidendi

The cross-claim and the challenged paragraphs of the defences disclose an arguable cause of action or defence in equity and should not be disposed of summarily. Issues regarding knowing receipt, constructive trust, and the Plaintiff's status as a 'primary wrongdoer' or recipient of trust-derived property are matters for trial, not for summary dismissal. The pleadings are not frivolous or vexatious in the circumstances.

Court Disposition

Plaintiff's amended notice of motion dismissed with costs.

Orders

  • Order that the amended notice of motion filed by the Plaintiff on 18 November 2009 be dismissed.
  • Order that the Plaintiff pay the costs of the First, Second and Third Defendants of the amended notice of motion, and of the notice of motion filed by the Plaintiff on 25 August 2009.