Al Azahri, Azhari and Azhari as trustees of the Australia Islamic Educational Trust v Sheik Al-Maktoum [2020] QSC 297

SUPREME COURT OF QUEENSLAND CITATION: Al Azahri, Azhari and Azhari as trustees of the Australia Islamic Educational Trust v Sheik Al-Maktoum [2020] QSC 297 PARTIES: ABDUL QUDDOOS AL AZHARI, AHMED ABDULLAH AZHARI AND MOHAMMED ABDUR RAHMAN AZHARI AS TRUSTEES OF THE AUSTRALIA ISLAMIC EDUCATIONAL TRUST (Plaintiff) v SHEIKH HAMDAN BIN RASHID AL-MAKTOUM (First Defendant) AND THE AL MAKTOUM FOUNDATION LIMITED (Second Defendant) AND MIRZA AL SAYEGH (Third Defendant ) FILE NO/S: BS No. 13173 of 2016 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 September 2020 DELIVERED AT: Brisbane HEARING DATE: 26 May 2020 JUDGE: Brown J ORDER: The order of the court is that: 1. Summary judgment is entered in favour of the first defendant and the plaintiffs’ claims against the first defendant be dismissed; and 2. Paragraph 33 should be struck out with liberty to replead. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where plaintiffs built two schools in honour of first defendant and -- 1 of 21 -- 2 first defendant’s late brother – where first defendant gave approval in principle where plaintiffs contend first defendant – where plaintiffs and second and third defendants engaged in discussions on funding and support of construction of schools – whether plaintiff has no real prospect of succeeding on all or part of plaintiff’s claim against first defendant – whether need for trial for claim or part of claim against first defendant PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where defendants applied for strike out of paragraphs 31 and 33 of FASOC – where plaintiffs amended pleading after strike out application filed but before strike out application heard – where plaintiffs accept and agree to replead paragraph 33 of FASOC – Uniform Civil Procedure Rules 1999 (Qld), r 239 The Bell Group Ltd (In liq) v Westpac Banking Corporation (2008) 39 WAR 1, considered Browning v ACN 149 351 413 Pty Ltd (in liq) [2016] QCA 169, considered Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, considered Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, cited Haggarty v Wood (No 2) [2015] QSC 244, followed Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295, considered Walton Stories (Interstate) Limited v Maher (1988) 164 CLR 387, considered COUNSEL: G Coveney with S Lane for the plaintiffs T Sullivan QC with S Hooper for the defendants SOLICITORS: Mitry Lawyers for the plaintiffs Hall & Wilcox for the defendants Introduction [1] The plaintiffs as trustees of the Australian Islamic Educational Trust wished to build two schools dedicated to the first defendant, Sheikh Hamdan Bin Rashid Al-Maktoum (the Sheikh) and his late brother, Sheikh Maktoum Bin Rashid Al-Maktoum, the Sheikh’s predecessor. To that end, they wished to obtain the approval and support of the first defendant for the dedication and construction of the schools. On 6 April 2006, Mirza Al Sayegh, the third defendant (the Sheikh’s secretary and a director of the second defendant) wrote to the representative of the plaintiffs informing them of the Sheikh’s approval in principle,1 and indicating that the second defendant (a registered corporation and charitable foundation of the first defendant) had been instructed to 1 Spelled as “principal” but the parties agreed at the hearing that there is agreement that “principal” is to mean “principle”: T1-16/21–22. -- 2 of 21 -- 3 follow up with the plaintiffs on how to proceed. What approval in principle means is the subject of some controversy in the present case. Following the 6 April 2006 letter a considerable amount of correspondence was exchanged and meetings occurred between the plaintiffs and the third and second defendants in relation to the funding of the schools. During that period, the plaintiffs incurred costs for the acquisition of land and construction of the schools. No formal agreement was entered into between the parties. [2] The plaintiffs claim that, either by reason of conventional estoppel or promissory estoppel, the first and second defendants are estopped from departing from a common understanding or denying their liability to reimburse the plaintiffs for the cost of the acquisition of land and construction of the schools. The first defendant contends that he is entitled to summary judgment as the facts and pleaded documents do not provide a basis for the claims made against him. In particular he contends that the pleaded factual substratum does do not establish that the plaintiffs held or could reasonably hold an assumption or expectation that the first defendant would pay certain costs of constructing the schools or was obliged to reimburse those costs. In the alternative, all of the defendants seek to strike out of some paragraphs of the statement of claim. [3] The plaintiffs contend that there are disputes of fact and that the determination of whether an estoppel is made out requires consideration of the conduct as a whole and taken as a whole, the court could not conclude that the plaintiffs have no real prospect of success. Further, the plaintiffs submit that an estoppel case requires consideration of all the circumstances of the case, including cultural matters which bear upon the conduct of the parties such that the matter requires a trial. Finally it submits, given the complex legal issues involved where legal principles continue to evolve, the court should exercise its discretion to refuse summary judgment. [4] To determine the matter I will: (a) Briefly summarise the pleaded case; (b) Identify the relevant legal principles; (c) Consider the factual substratum and whether or not the case against the first defendant has real prospects of success; and (d) Resolve whether or not the claims against the first defendant should be summarily dismissed or any allegations contained in the statement of claim should be struck out. The pleaded case [5] In the Further Amended Statement of Claim (FASOC),2 the plaintiffs plead that the first defendant is liable in the present proceedings either as a result of a common understanding giving rise to a conventional estoppel,3 or an assumption or expectation induced by the first defendant that the first defendant had agreed to pay the costs of the acquisition of the land and the construction of the schools at Brisbane and the 2 Filed after the summary application was filed and served. The first defendant however continued its application on the basis of the FASOC, the changes being identified in attachment 1 to the first defendant’s outline of submissions. 3 FASOC at [33]. -- 3 of 21 -- 4 Gold Coast, upon which the plaintiffs relied and acted to their determinant giving rise to promissory estoppel.4 [6] As a result of correspondence and meetings that occurred pleaded in [5]-[32] of the FASOC, the plaintiffs contend that the first and second defendants conducted themselves on a common understanding that the plaintiffs would acquire the land as necessary and construct the schools, which would be dedicated to the first defendant and his late brother in perpetuity and that the first and/or second defendants would pay the costs of the acquisition of land and construction of the schools. It is alleged that the plaintiffs acted in reliance on that common understanding and incurred costs and expenses to their detriment for which they would not be reimbursed if the alleged common understanding is departed from by the first and second defendants. It is alleged that the first and second defendants are estopped from denying that common understanding on the basis of a conventional estoppel. [7] In the alternative, the plaintiffs allege that, as a result of the matters pleaded in [5]- [32] of the FASOC, the first and second defendants are estopped from denying their liability to reimburse the plaintiffs, as the plaintiffs had assumed that in consideration and on condition of the two schools being dedicated as noted in the third defendant’s letter of 6 April 2006 the first and/or second defendants had agreed to pay for the cost of that acquisition of the land and construction of the schools. It is said that that assumption or expectation was induced by the first and second defendants sending the letter of 6 April 2006 and then continuing to engage with the plaintiffs about the funding of the school and not refuting, correcting or otherwise questioning the plaintiff’s assertions that the projects had been approved by the first and second defendants. The plaintiffs allege that they relied on the assumption and expectation and that the first and second defendants knew or intended that they would rely on the assumption or expectation and that the plaintiffs will suffer detriment if that assumption or expectation is not fulfilled. It is alleged that it would be unconscionable for the first and/or second defendants to rely on the absence of a concluded agreement between them and the plaintiffs to avoid reimbursing the plaintiffs and that the first and/or second defendants are estopped from denying liability for the costs. [8] There is an alternative claim for breach of warranty against the third defendant. Estoppel – legal principles [9] To establish a conventional estoppel, the plaintiff must prove that: (a) It adopted an assumption as to the terms of its legal relationship with the defendant; (b) The defendant adopted the same assumption; (c) Both parties conducted their relationship on the basis of that mutual assumption; (d) Each party knew or intended that the other act on that basis; and (e) Departure from the assumption will occasion detriment to the plaintiff.5 4 FASOC at [34]-[37] and [39]-[40]. 5 Browning v ACN 149 351 413 Pty Ltd (in liq) [2016] QCA 169 at [42]. -- 4 of 21 -- 5 [10] An estoppel by convention is not founded on representation, but rather on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both parties are estopped from denying.6 It requires a meeting of minds giving rise to a consensus between the parties encouraging the belief that a particular state of affairs is to be assumed as the correct basis of their dealing.7 That meeting of minds may be inferred, or there must be at least, “a demonstrable acceptance of a particular state of things” as the foundation for dealings between the parties.8 The acts alleged to give rise to the convention must be unequivocally referable to it.9 [11] In The Bell Group Ltd (In liq) v Westpac Banking Corporation,10 Owen J stated that “the person sought to be estopped must have contributed in some active way towards the creation or continuance of the mistaken basis on which the parties conduct their dealings, thus making it unconscionable to allow that party to resile from the stance he or she has taken.” His Honour further noted that estoppel is not concerned with a self-induced mistake even if both parties made the same mistake. [12] As to promissory estoppel, the plaintiff is required to prove that:11 (a) It assumed that a particular legal relationship existed between it and the defendant, or expected that a particular legal relationship would so exist (and in the latter case, the defendant would not be free to withdraw from the expected legal relationship); (b) The defendant induced the plaintiff to adopt that assumption or expectation; (c) The plaintiff acted or abstained from acting in reliance in the assumption or expectation; (d) The defendant knew or intended the plaintiff to do so; (e) The plaintiff’s action or inaction would occasion detriment if the assumption or expectation were not fulfilled; and (f) The defendant failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. [13] For a representation to found an estoppel it must be clear. French CJ, Kiefel and Bell JJ in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (Crown Melbourne):12 “It has long been recognised that for a representation to found an estoppel it must be clear. In Low v Bouverie, it was said that the language used must be precise and unambiguous. This does not mean that the words used may not be open to different constructions, but rather that they must be able to be understood in a particular sense by the person to whom the words are addressed. The sense in which they 6 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; Browning v ACN 149 351 413 Pty Ltd (in liq) [2016] QCA 169 at [42]. 7 Mulherin v Bank of Western Australia Ltd [2005] QSC 205 at [144]. 8 Queensland Independent Wholesalers Limited v Coutts Townsville Pty Ltd [1989] 2 Qd R 40 at 44-46. 9 Shanemist Pty Ltd v Denmac Nominees Pty Ltd [2003] QSC 373 at [39]. 10 (2008) 39 WAR 1 at [3525]. 11 Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 at 428 – 9 per Brennan J. 12 (2016) 260 CLR 1 at [35]. -- 5 of 21 -- 6 may be understood provides the basis for the assumption or expectation upon which the person to whom they are addressed acts. The words must be capable of misleading a reasonable person in the way that the person relying on the estoppel claims he or she has been misled. The statement that the tenants would be “looked after at renewal time” is not capable of conveying to a reasonable person that the tenants would be offered a further lease.” (citations omitted) [14] In Crown Melbourne, there were separate judgments by both Keane J and Nettle J who discussed to varying degrees the level of certainty required for a representation. Gordon J and Gaegler J did not address the question at all. Keane J stated that the law of estoppel does not provide for a lower standard of certainty for a representation than would be the case in contract law to found promissory estoppel.13 His Honour was particularly addressing the situation where a contractual right or liability was to be altered. Nettle J did not agree with Keane J that a high degree of certainty was required for promissory estoppel commenting that an equivocal or objectively ambiguous representation may yet found a promissory estoppel. In the context of considering whether there was a different degree of certainty required for promissory estoppel as opposed to proprietary estoppel, his Honour also observed that the recognised applications of established categories of promissory estoppel are not necessarily exhaustive of the cases in which equity will intervene and even if they were it would not follow that the same degree of certainty would not necessarily be required in the context of a different relationship or in different circumstances.14. Importantly however Nettle J still considered that the appellant in that case would be chargeable with such assumptions or expectations as might reasonably be attributed to the assurance in the circumstances which obtained.15 The consideration of the question of certainty in Crown Melbourne was specifically in response to an argument that the assurance in question lacked contractual certainty and the claim was therefore bound to fail. Notwithstanding the differing approaches of French CJ, Kiefel and Bell JJ, Keane J and Nettle J, all found that the statement in question was not capable of conveying to a reasonable person the meaning contended for by the tenants. [15] In Hammond v JP Morgan Trust Australia Ltd (Hammond’s Case),16 Meagher JA17 observed that while a representation must be clear or clear and unambiguous before it can found a promissory estoppel, a representation will support an estoppel if it was reasonable for the representee to interpret the representation or promise in the way contended for and to act in reliance on that interpretation. Given the decision of the plurality and Keane J that remains the law in Australia. [16] In that regard, Meagher JA also stated18 that whether the conduct was reasonably capable of giving rise to a particular representation or promise it is necessary to have 13 (2016) 260 CLR 1 at [143] and [147], where his Honour explained that the comments in Sullivan v Sullivan [2006] NSWCA 312, relied upon by Warren CJ, were made in the context of proprietary estoppel, as to which see Keane J’s comments at [148]; cf Nettle J. 14 At [218]. 15 At [223]; See also his Honour’s statement at [218] that the equivocal or objectively ambiguous nature of the representations but one, albeit important, consideration in the determination of whether and to what extent the assumption or expectation is fairly and reasonably to be attributed to the representation and thus the measure of the relief which is to be accorded. 16 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 at [52]. 17 With whom Basten JA and Bergin CJ in Eq agreed. 18 At [53]. -- 6 of 21 -- 7 regard to the context in which it occurred and to consider what it would have conveyed to a person in the position of the recipient. [17] The plaintiffs contend that the reasonableness of any reliance depends upon whether it was reasonable for the person affected by the conduct to act as they did. It states that draws upon considerations of context and that there is no overriding objective standard. Counsel for the plaintiff relied in that regard upon an extrapolation from Hammond’s case which has been referred to above. [18] However, that is unsupported by the authority, insofar as it is suggested that it is sufficient that the assumption or expectation can be the result of a party’s own subjective interpretation rather than being reasonably capable of being held based on the facts relied upon. It is clear from the plurality in the High Court in Crown Melbourne and Meagher JA in Hammond’s case, that the words and/or conduct relied upon must be reasonably capable of giving rise to the representation or be reasonably understood in a particular sense by a person to whom those words or conduct are addressed, such as to be able to create the assumption or expectation in question. [19] Nettle J in Crown Melbourne19 referred to the foundational principle on which equitable estoppel in all its forms is grounded is that equity will not permit in unjust or unconscionable departure by a party from an assumption or expectation of fact or law present or future which the party has caused another party to adopt for the purpose of their legal relations. Whether it is unconscionable will depend on the particular facts and circumstances of the case. [20] Counsel for the plaintiffs emphasised that to succeed in establishing promissory estoppel, the plaintiffs did not need to establish that there was a representation, but rather that there must be the creation or encouragement by a defendant in the plaintiff of an assumption that a contract will come into existence or a promise would be performed and reliance on that by the plaintiff in circumstances where departure from the assumption would be unconscionable.20 Brennan J in Walton Stores observed that a defendant does not need to actively induce the plaintiff to adopt an assumption or expectation but may be held to have done so if the assumption or expectation can only be fulfilled by a transfer of the defendant’s property or an increase in obligations if, knowing of the plaintiffs’ reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.21 [21] In that regard, the plaintiffs refer to Taylor’s Fashions Ltd v Liverpool Victoria Trustees Co Ltd,22 where Oliver J observed that acquiescence or encouragement can take many forms, including stimulating or not objecting to some change of legal position on the faith of a unilateral or a shared assumption as to the future conduct of one or other party. The plaintiffs’ submissions in terms of acquiescence and the 19 At [217]. 20 There does not need to be a pre-existing legal relationship between the parties: Austotel Pty Ltd v Franklin Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610. 21 Walton Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 428 where Brennan J also outlined six matters necessary to prove equitable estoppel. As was also outlined by his Honour, the element of inducing the adoption of an assumption may be the result of a failure to correct the assumption or expectation. 22 [1981] 1 All ER 897 at 913. -- 7 of 21 -- 8 degree of certainty for a representation have sought to rely in some respects upon cases with respect to proprietary estoppel which is not governed by the same requirements as promissory estoppel.23 Nothing turns on those matters in this case. Principles of summary judgment [22] The defendants seek judgment under r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). It provides that the court may give summary judgment for a defendant against a plaintiff for all or part of the plaintiff’s claim if the court is satisfied that: (a) The plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim; and (b) There is no need for a trial for the claim or the part of the claim. [23] In considering the test provided for under r 293, it is relevant for the court to consider whether there is a real, as opposed to a fanciful, prospect of success.24 A court must also be mindful to ensure that a plaintiff is not improperly deprived of his or her opportunity for trial of his or her case under the guise of achieving expeditious finality.25 Satisfying the Court that the case is an appropriate one for summary judgement under the UCPR still requires a party to meet a high bar. [24] Jackson J in Haggarty v Wood (No 2),26 having considered the history of the summary judgment rules observed that: “Where a necessary factual element of a plaintiff’s case can be decided against the plaintiff on a summary basis, a clear case for the application of r 293 of the UCPR exists.” 27 He further stated: “[81] In my view, it will not be appropriate always under r 293 UCPR to give final judgment in a case in the fashion of a decision upon demurrer where a plaintiff has not pleaded a viable case capable of proof at trial by evidence, but might be able to. However, an application under r 293 UCPR presupposes that the defendant has filed a defence in response to a properly prepared and filed claim and statement of claim, so the court should not be too wary of treating a plaintiff as having nailed their colours to the mast. That approach is all the more justified where the plaintiff 23 Proprietary estoppel by encouragement and proprietary estoppel by acquiescence are distinct from promissory estoppel: E Co v Q [2018] NSWSC 442 at [904]-[909]. The plaintiffs’ submissions have in that regard conflated the two. See reference to E Co v Q [2018] NSWSC 442 at [940] at footnote 40; Sullivan v Sullivan [2006] NSWCA 312 which is discussed in E Co v Q [2018] NSWSC 442 at [956]. See also Ward J’s discussion in relation to promissory estoppel and certainty requirements at [949]-[950]. 24 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, which has been approved on multiple occasions by the Court of Appeal. See for example, Macdonald v Deputy Commissioner of Taxation [2018] 2 Qd R 276 at [38]. 25 Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at [7], per Holmes JA (as her Honour then was). 26 [2015] QSC 244. 27 Haggarty v Wood (No 2) [2015] QSC 244 at [78]. -- 8 of 21 -- 9 has had numerous attempts to articulate their case over a lengthy period. [82] Whether a particular case fits into this category calls for the exercise of a discretionary judgment. Sometimes, a pleader’s skills may be the problem but the facts otherwise proved or indicated by the evidence will give pause to a Judge acting under r 293 UCPR. However, in other cases, the difficulty will lie in the absence of a factual stratum to make a necessary allegation, not in the failure to allege it in the pleading. In my view, r 293 UCPR is properly engaged in such a case.”28 [25] As a result of the plaintiffs engaging counsel who amended the FASOC on the weekend before this application was heard, a number of the original complaints in relation to the amended statement of claim were addressed and are no longer in issue. [26] Notwithstanding the FASOC, the first defendant contends that it is still entitled to summary judgment because: (a) A necessary factual element of a plaintiff’s case against the first defendant can be decided against the plaintiff on the summary basis; (b) In the circumstances, the plaintiff has no real prospect of succeeding on the claims against the first defendant and there is no need for a trial of those claims; and (c) Accordingly, it would be appropriate to dismiss the claims against the first defendant on a summary basis. Can the pleaded factual substratum establish the claim? [27] It is contended on behalf of the first defendant that, in order to succeed in its claim against the first defendant, the plaintiffs must prove that they understood, assumed or expected that the first defendant would pay certain costs of constructing the schools or was obliged to reimburse those costs. In order to establish their case, the plaintiffs must prove that they reasonably held such an understanding, assumption or expectation and that this resulted from some conduct of the first defendant. [28] It is contended on behalf of the first defendant that the plaintiffs fail at the threshold and that an analysis of the facts and documents relied upon by them in their pleaded case reveals that there is no prospect of the plaintiffs successfully establishing the above matters in respect of the first defendant. [29] The first defendant’s counsel took the Court through each of the factual allegations in [5]-[32] FASOC, which are relied upon to establish each of the estoppels, to demonstrate that no factual substratum existed that was reasonably capable of giving rise to an understanding, expectation or assumption that the first defendant would pay or reimburse the plaintiffs for the cost of the schools and that it could be attributed to conduct of the first defendant. 28 Haggarty v Wood (No 2) [2015] QSC 244 at [81] – [82]. -- 9 of 21 -- 10 [30] The first defendant’s contention that it is entitled to summary judgement is premised upon the court accepting, for the present application, the facts as they are pleaded in the FASOC. [31] In the letter of 24 March 2006,29 the plaintiffs briefly outlined their proposal to build two schools at Brisbane and the Gold Coast in the name of the first defendant’s late brother who had recently passed away. It did not make a request for any funding. The letter proposed one school would be built in Brisbane and the other at the Gold Coast, but provided no concrete proposal and stated “hence, in the light of the above fact and information we would like to request for you to consider the above proposal favourably”. [32] A response was provided by the third defendant, the personal secretary of the first defendant, who was and is also a director of the second defendant. The letter of 6 April 2006 relevantly states as follows: “Sheikh Hamdan has also approved in principal [sic] your request to build two schools, one in Brisbane and the second on the Gold Coast. Is [sic] Highness’s charity organisation, The Al Maktoum Foundation in Dubai, has been instructed to follow up with you on how we should proceed. I would therefore like full information on your Academy, including but not limited to the following items: 1 Number of Students 2 Methods of funding at present and in the future 3 Are there any Government Grants provided 4 Names of board of directors and treasurer 5 Site plans for schools in Brisbane and Gold Coast. Please note that the schools, to be named after Sheikh Maktoum Al Maktoum and Sheikh Hamdan Al Maktoum will retain this title forever, and will be run both financially and administratively by you after completion, in line with the laws and regulations prevailing in Australia. I will be in England until 23rd April 2006 after which I shall return to Dubai for approximately one week before returning again to England, I would be grateful if you would visit me in Dubai in order to discuss any further details, which will be a [sic] documented in an official agreement between your academy and The Al Maktoum Foundation.” [33] That letter is contended by the first defendant to be critical to the case against him. It is submitted on behalf of the first defendant that the 6 April 2006 made clear that: (a) The plaintiff’s proposal had been approved by the first defendant “in principle”; 29 Pleaded at [5] of the FASOC; Affidavit of J Uljans at exhibit JPU-8. -- 10 of 21 -- 11 (b) However, the second defendant, as the first defendant’s charitable organisation, sought further details of the proposal; and (c) If any agreement was to be reached, it would be with the second defendant and it was required to be one which was officially documented between the plaintiffs and the second defendant. [34] It is submitted on behalf of the first defendant that the 6 April 2006 letter cannot reasonably be construed as having represented that the first defendant would, or even might, personally provide funding or that he would, or even might, enter into an agreement to do so. In that regard, the first defendant points to the fact that the plaintiff’s FASOC correctly acknowledged that the 6 April 2006 letter noted “that the proposal would be documented in an official agreement between the Trust and the Second Defendant”.30 [35] The first defendant contends that the substratum of facts relied upon by the plaintiffs never changes from the position that the second defendant would be the entity the plaintiffs were dealing with on the issue and any agreement would be with the second defendant. It therefore contends that there is no basis for an assumption or an expectation that the first defendant had agreed personally to pay or agreed personally to reimburse the plaintiffs. Subsequent correspondence relied upon refers back to the approval in principle contained in the letter of 6 April 2006 but does not provide anything additional in relation to the first defendant which could form a basis for an assumption or an expectation that the first defendant had agreed personally to pay or had agreed personally to reimburse the plaintiffs. The first defendant also submits that none of the meetings pleaded support the allegation made. [36] The plaintiffs emphasise that the approval in principle is stated by the third defendant, who is the first defendant’s agent, from the first defendant, a leader of Dubai, who could direct the schools be funded in any way in which he thought appropriate. They contend that by stating that the projects were approved in principle, the first defendant was representing that he accepted overall responsibility for the projects. That however is contrary to the fact it was an “approval in principle”, which on its plain meaning is a non-binding arrangement. To the extent that there was any ambiguity as to who was the party with whom the plaintiffs were to negotiate for funding, the letter directs the plaintiffs to deal with the second defendant and to information being provided and for meetings with the third defendant to reach an official agreement between the second defendant and the plaintiffs. [37] The plaintiffs rely upon a letter of 19 April 2006 from the plaintiffs addressed to the third defendant which stated:31 “Thank you for your kind letter and your in principal [sic] approval to build two schools, one in Brisbane and the second on the Gold Coast. We would be happy to work with the conditions stipulated in your letter and ensure that our trust deeds reflect that the name of our educational complex will permanently acknowledge the generous contribution of his Highness, the late Sh. Maktoum Bin Rashid Al Maktoum. We would propose to your good self to name the 30 acre 30 FASOC at [6(f)]. 31 Affidavit of J Uljans at exhibit JPU-9. -- 11 of 21 -- 12 complex in Brisbane the Sh. Maktoum Al Maktoum Educational Complex and use the same name for the complex in the Gold Coast.” [38] The letter proceeds to generally outline what was envisaged by the project and to seek to make arrangements in relation to a meeting with the third defendant in Dubai. The letter was addressed to the third defendant as well as the second defendant. [39] In paragraphs 9 to 32 of the FASOC, the plaintiffs plead various meetings which occurred between April 2006 and 13 December 2012. None of those meetings were with the first defendant but were with the third defendant and other representatives of the second defendant and sometimes lawyers acting on behalf of the second defendant. More significantly, no conduct is pleaded in relation to the meetings or telephone discussions from which it could be inferred that the first defendant would pay or reimburse the plaintiffs for costs of the schools or from which it could be inferred that there was any encouragement of such an assumption or expectation by the plaintiffs. [40] Some of the correspondence relied upon by the plaintiffs was addressed to the first defendant. The letter of 25 January 2007 provided an update on meetings and negotiations with the second and third defendants and stated that: “In this humble request, we would be grateful if His Royal Highness would instruct Honourable Mirza Al-Sayegh to the commencements of construction work.”32 [41] In its submissions, the plaintiffs reference the first defendant’s approval of the schools in the letter and seeks that the first defendant instruct the third defendant to the “commencements of construction work”. [42] While the letter does refer to the first defendant’s “kind approval” it also states “we had been meeting and negotiating with Honourable Mirza Al-Sayegh and also with Al-Maktoum Foundation in Dubai”. Further, the letter does not refer to the first defendant instructing the third defendant alone, but as is evident from the quote above, the second defendant as well. The only “approval” that had been given was the “approval in principle” in the 6 April 2006 letter which stated that the plaintiffs were to negotiate with the second defendant and meet with the third defendant to that end, which is consistent with the reference to the second and third defendant by the plaintiffs. [43] A letter of 16 May 2007, which was addressed to the first defendant, provided a status report and stated: “Since your approval, we have been following with His Excellency Mirza Al-Sayegh and the director of Al-Maktoum Foundation… His Excellency Mirza has approved and agreed to start the first school, Sheikh Hamdan Bin Rashid Al-Maktoum in Brisbane...”33 The letter sought that the first defendant “bless the project to start its construction” so construction could start before the expiry of the development approval. 32 Affidavit of J Uljans at exhibit JPU-10. 33 Affidavit of J Uljans at exhibit JPU-13. -- 12 of 21 -- 13 [44] On 25 September 2007, the plaintiffs wrote to the third defendant stating, “As per Al- Maktoum Foundation instruction, I have proceeded to prepare [memorandum of understanding]…” The memorandum of understanding (MOU) was enclosed with the letter. That draft MOU34 was between the second defendant and the plaintiffs.35 The draft MOU states, inter alia, “Al Maktoum Foundation and the Academy have agreed to enter into this legally binding MOU” and includes a term to make provision for the second defendant being very generous in making donations with the amount left blank to be inserted. That is consistent with the position that was set out in the letter of 6 April 2006, namely that any funding support was to come from the second defendant. The plaintiffs emphasised the letter attaching the MOU referred to the fact that it had been two years since the first defendant’s approval to build the schools. Again, however, the MOU makes clear that approval is referrable to the letter of 6 April 2006. [45] Correspondence on 10 October 2007 from the plaintiffs to the third defendant submitted a revised project proposal and stated: “Your kind approval and urgent attention and assistance for the construction of above the project will be highly appreciated.”36 [46] In a letter of 20 April 2008,37 the plaintiffs wrote to the personal assistant of the third defendant pointing out the time that had elapsed since the first defendant “approved the project of building two schools” requesting her “to assist and support to materialise this noble project by forwarding the enclosed letter to His Excellency Mirza Al-Sayegh.” [47] The approval of the first defendant must refer back to the approval in principle contained in the letter of 6 April 2006, as no other “approval” is referred to or pleaded in the correspondence for that period. [48] It is pleaded that a meeting occurred on 3 October 2008 between the third defendant, a director of the second defendant and the plaintiffs’ representative in Dubai where it is pleaded that an update was provided as to the construction of the Gold Coast school and that the third defendant stated he would take the documents to the first defendant. [49] Between October 2008 and 16 March 2010, the FASOC pleads meetings and telephone discussions occurred with the plaintiffs’ representative, architects and the third defendant stating “he would fax confirmation of the start of the project, have the memorandum of understanding completed and finalized [sic] and would visit Brisbane to oversee the projects.”38 [50] In the correspondence of 16 March 2010,39 the plaintiffs wrote to the third defendant following their meeting and stated: 34 Although pleaded in the amended statement of claim, it was removed from the FASOC. 35 Affidavit of J Uljans at exhibit JPU-16. 36 Affidavit of J Uljans at exhibit JPU-14. 37 Affidavit of J Uljans at exhibit JPU-17. 38 FASOC at [23(b)]. 39 Affidavit of J Uljans at exhibit JPU-20; Pleaded at [26] of the FASOC. -- 13 of 21 -- 14 “In line with our discussion we have prepared the executive summary based on the programme discussed to assist you Excellency in briefing your lawyer and Al-Maktoum Foundation. We understand that your Excellency will be in a position to finalise this over the next week as the lawyer from Adelaide will be arriving in Dubai and to complete MOU with Al Maktoum Foundation.” (underlining added) [51] That correspondence is again consistent with the letter of 6 April 2006 contemplating that any agreement in relation to funding was to be with the second defendant and that the plaintiffs had proceeded on that basis. [52] A letter of the plaintiffs to the third defendants dated 19 May 2011 states that “both schools which were approved by Your Excellency and [the first defendant].”40 [53] On 2 February 2012, the plaintiffs wrote to the third defendant setting out a history of the matter and stating:41 “I regret that I must write to you again in your capacity as both personal secretary to His Royal Highness Sheikh Hamdan Bin Rashid Al-Maktoum and as a person of great authority with the Al Maktoum Foundation. On 6 April 2006 you wrote to me and advised that Sheikh Hamdan had approved the two schools in principle.” [54] The letter addresses the delay in any funding being forthcoming and that the plaintiffs have incurred costs in respect of the construction of the school at the Gold Coast. [55] In paragraph 32 of the FASOC, a meeting between the third defendant, Mr Ghannam, the director of the second defendant, and the Chairman of the plaintiff is said to have occurred in Dubai, where the Chairman Al Azhari explained the financial costs incurred and hardship experienced by the plaintiffs. The third defendant apparently stated: “Yes, it is a bit late and too long, we should start and proceed with the project. Tonight I will meet with [the first defendant]. I will personally take charge of this matter and see to it that all payments and issues are settled without further delay.” [56] In a letter of 10 July 2014 written on behalf of the plaintiffs to the first defendant, which is not relied upon by the plaintiffs in the FASOC but was in oral argument, there are statements that:42 “5.0 You are also fully aware that since 2006, AIET set up the School and incurred all of the above expenditure in good faith at all times confident that Al Maktoum Foundation will reimburse the cost as promised. In this regard, may we draw your kind attention to the letter of 6th April 2006, our letters of 2nd February 2012, 1st November 2013 and 19th February 2014 and the various meetings that I have had with brother Mirza, the 40 Affidavit of J Uljans at exhibit JPU-23. 41 Affidavit of J Uljans at exhibit JPU-24. 42 Affidavit of J Uljans at exhibit JPU-27. -- 14 of 21 -- 15 UAE Ambassador in Canberra, lawyer Mark Kelly in Adelaide and so on. … 8.0 May I therefore with all respect and humility, request Your Highness to bring this episode to a satisfactory close by getting the esteemed Al Maktoum Foundation to settle all the amount incurred by AIET to date in this Holy and Blessed month of Ramadhan…. … 10.0 We will indeed be grateful to Your Highness, the Al Maktoum Foundation and Brother Mirza for the rest of our lives. We also look forward to the foundation giving us a date at its earliest convenience to organise the event for officially naming the school as “Al-Maktoum Memorial School”.” (underlining added) [57] The plaintiffs emphasise that paragraph 8 of the above letter underscores the impression that it was the first defendant who was responsible and asking him to give direction to the second defendant. The first defendant however emphasises that consistent with the letter of 6 April 2006 it refers to the negotiations with the second defendant being brought to a close. [58] A letter of 16 September 2015 written by a representative of the plaintiff to the third defendant, which is not relied upon in the FASOC, stated that:43 “As you are very well aware, the Australian Islamic Education Trust acted in good faith following a Royal commitment made to it by His Royal Highness Sheikh Hamdan bin Rashid Al Maktoum through your good self on behalf of Al Maktoum Foundation. The commitment was made in writing by letter dated 6 April 2006. A copy is enclosed.” [59] While it is not pleaded in the FASOC, the plaintiffs in oral submissions emphasised that the letter again refers to the commitment of the first defendant, but conceded it was open to interpret the letter as relating to the commitment of the second defendant. Given the express reference to the second defendant and also the reference to the letter of 6 April 2006 it can only be construed to be referring to the proposed agreement between the plaintiffs and second defendant. [60] The plaintiffs’ solicitors wrote to the third defendant and the second defendant on 30 March 2016. That letter stated:44 “We refer to your letter of 6 April 2006 … in which you indicated Sheikh Hamdan Bin Rashid Al Maktoum’s acceptance of our client’s offer to build two schools in memorial of the late Sheikh Maktoum Bin Rashid Al Maktoum.” 43 Affidavit of J Uljans at exhibit JPU-28. 44 Affidavit of A Al Azhari at exhibit AA-1. -- 15 of 21 -- 16 [61] The offer is said to have been contained in the letter of 24 March 2006. A letter of 30 March 2016 from the plaintiffs’ solicitors to the third defendant refers to confirmation of an agreement with “you, the Al Maktoum Foundation and our clients… being subsequently referred to in both discussions and correspondence”. While the plaintiffs refer to “you” as being capable of being a reference to the first defendant, it is evident that it is referring to the third defendant to whom the letter is addressed. Much of what is relied upon in the letter is pleaded in the FASOC. While it refers to the first defendant being a potential party to any proceedings, other than the 6 April 2006 letter, nothing is relied upon in the letter which suggests the first defendant caused the plaintiffs to assume or expect that he was responsible to pay the costs of or reimburse the costs incurred in the construction of the schools. [62] The plaintiffs’ emphasise that their case in relation to both estoppel by convention and promissory estoppel depends upon the whole of the conduct relied upon by it which is the subject of the FASOC and not a representation. While the plaintiffs’ counsel, quite correctly, conceded that its case in relation to the first defendant was a difficult case, he relied on the fact that the third defendant was involved throughout and that they plead he was the personal secretary of, and had authority to bind, the first defendant. The plaintiffs stated that the third defendant was involved in all the dealings, including attending meetings where there are disputes raised in the amended defence as to what was said and what occurred in those meetings. The involvement of the third defendant relevantly links the first defendant to the correspondence exchanged and the meetings that occurred which resulted in the assumptions or expectations adopted by the plaintiffs. The first defendant could, in the plaintiff’s submission, be held to have induced that expectation or assumption by inaction. [63] The plaintiffs plead in the FASOC that the third defendant was not only a director of the second defendant, but also personal secretary to the first defendant, and had authority to act on behalf of the first defendant and the second defendant in his dealings with the plaintiffs. The fact that the third defendant was the first defendant’s secretary and a director of the second defendant is a matter previously admitted in the Amended Defence. [64] The plaintiffs contend that regard has to be had to the context in which the conduct occurred and in particular, the fact that it was a proposal to build schools dedicated to the first defendant, the Crown Prince of Dubai and his recently deceased brother, the former Crown Prince, in considering the question of reliance. The plaintiffs emphasise that this was not an arms-length negotiation for some commercial bargain, but they were seeking a “charitable contribution and commitment to build those schools, in consideration for perpetual dedication of them once completed”.45 Further, the plaintiffs state it is necessary to have regard to the cultural context insofar as the context is not only Middle Eastern, but Islamic. The plaintiffs submit that the effect that the context brings to the case cannot be divined from letters or even pleadings, but will only emerge from the evidence of trial.46 The plaintiffs submit that whether the first defendant could have created or caused the pleaded assumption or expectation to be adopted can only be determined by reference to all of the circumstances of the case. 45 Plaintiff’s Outline of Submissions at [33]. 46 Plaintiff’s Outline of Submissions at [34]. -- 16 of 21 -- 17 [65] Mr Al Azhari provided an affidavit on behalf of the plaintiffs, stated that from the response of 6 April 2006, he understood the third defendant was authorised to conduct any dealings in relation to the projects on behalf of the first and/or second defendant. In paragraph 8 of Mr Al Azhari’s affidavit he states: “From the third defendant’s response [ie. the letter of 6 April 2006], I understood that the proposal to build schools at Brisbane and the Gold Coast had the approval of the first defendant, and that I was to liaise with the third defendant as to the funding of the projects by the second defendant.” (underlining added) [66] Mr Al Azhari stated, inter alia, that in a meeting of 16 October 2006 with the third defendant and Mr Ghannan, the chair of the second defendant, the third defendant directed the chair of the second defendant to facilitate the project. The third defendant did not, in the meeting of 16 October 2006, suggest that the commencement of work was tied to the finalisation of a memorandum of understanding. He stated that his impression was that “the project had been approved by the first and/or second defendants and that work should commence immediately with the possibility of the agreement being documented in a memorandum of understanding”. His impression was based on the correspondence of 6 April 2006 and the meeting with the third defendant and the chairman of the second defendant in Dubai. [67] Mr Al Azhari deposes to the fact that he proceeded on the basis that the cost of the project to build the schools would be paid or reimbursed by the first and second defendants after receiving the correspondence of 6 April 2006 and that he had made that assumption in his dealings with the third defendant as pleaded in the FASOC. [68] The plaintiffs further rely upon the third defendant’s response to a letter from the plaintiff’s lawyers in a letter of 25 April 2016 where he stated that “I personally spend a long time discussing the proposals which we still like to support and I raised the issue with the donor who did not agree the cost, which is natural in these cases as we cannot force him to accept or make any donation without his approval.”47 It contends that the donor clearly refers to the first defendant. I accept that must be the case. The correspondence has little weight given it responds to the letter of the plaintiff’s lawyers and post-dates the conduct relied upon in the FASOC. It is not an admission by the first defendant, and is equivocal. No reasonable inference could be drawn that it supports that there was earlier conduct which gave rise to an assumption, expectation or understanding that the first defendant personally fund the projects. In fact, it recommends the plaintiffs approach the first or second defendant “to secure the required amount to be agreed by the donor” (emphasis added). [69] The plaintiffs contend that while the letter of 6 April 2006 alone may be insufficient to establish a case against the first defendant, when examined with the subsequent correspondence and other conduct pleaded which referred to approval having been given, the first defendant could not sit idly by and not correct the mistaken assumption or expectation of the plaintiffs. In the plaintiffs submission that as the project for the schools developed the correspondence is consistent with an understanding or expectation of the plaintiffs and their asking the first defendant that the expectation or promise to provide funding be made good. 47 Affidavit of A Al Azhari at exhibit AA-2. -- 17 of 21 -- 18 Conclusion on summary judgment [70] The first defendant has a high bar to meet to satisfy this Court that it is appropriate to grant summary judgment and that the issues in relation to the first defendant do not need to be ventilated at trial. However, as acknowledged by Jackson J in Haggarty’s case, where a necessary factual element of a plaintiff’s case can be decided against the plaintiff on a summary basis, where a viable case has not been established based upon the pleadings and the material relied upon there is a clear basis for the application of r 293.48 [71] In the present case, the plaintiffs have had three attempts at pleading the case against the first defendant and, save for concessions in relation to what are no more than pleading points in the context of the strike-out, it was not suggested that there is a case as yet unpleaded to be articulated. Thus, this is not a case where the Court should be too cautious about whether the plaintiff has pleaded the case it will seek to lead at trial. In any case, the first defendant’s case for obtaining summary judgement does not lie in a failure to plead but rather in the fact that the facts relied upon in the pleading and the other material relied upon at the hearing of this application including the affidavit of Mr Al Azhari do not provide the factual substratum to establish the necessary elements of the estoppel cases relied upon. [72] Taking the plaintiffs’ case at its highest and assuming the correctness of all the matters pleaded in the FASOC founding the allegations of estoppel and having regard to the additional matters referred to in the affidavit of Mr Al Azhari, the first defendant has persuaded me that in the present case there is an absence of any factual substratum to support the allegations of estoppel against the first defendant. In particular, there is no factual substratum pleaded or contained in the documents pleaded or relied upon in evidence which support a case that the first defendant was involved, by action or inaction, in inducing or contributing to any assumption or expectation thus making it unconscionable or from which it can be inferred there was any meeting of minds. [73] While, in the case of estoppel, the context may be a matter of importance, there is nothing to suggest in the present case that such a context provides any additional framework to suggest that there was a departure from the position stated in the letter of 6 April 2006, namely that the first defendant had approved the projects in principle, against the request made on 24 March 2006, but that approval in principle was explicitly stated to be on the basis that any agreement reached as to funding was to be with the second defendant. Given the second defendant was the charitable foundation of the first defendant, that may provide an additional dimension to the dealings of the plaintiffs with the second defendant in relation to funding that may well be influenced by the context referred to by the plaintiffs. It does not, however, support the expectation or assumption said to have been induced by the first defendant. The subsequent references to approval by the first defendant in the dealings that occurred do not, in relation to the first defendant, rise above the position stated in the letter of 6 April 2006. The calls for the first defendant’s intervention was in the context of the plaintiffs’ dealings with the second defendant. The correspondence relied upon by the plaintiffs is consistent with the fact that any funding for the projects was to be provided by the second defendant not the first 48 At [78] and [81]. -- 18 of 21 -- 19 defendant. That is supported by the terms of the draft MOU which makes no relevant reference to the first defendant in this context. [74] Nothing has been pleaded, nor any evidence provided, by the plaintiffs to suggest that the cultural context suggests that the correspondence should be construed to mean anything other than what is stated in relation to the first defendant’s position. It does not suggest that the plaintiffs have, on the basis of the dealings and correspondence relied upon, understood the first defendant’s position to be other than what was articulated in the letter of 6 April 2006 accepting that it can be attributed to the first defendant. The approval was “approval in principle” which, adopting the broadest interpretation in favour of the plaintiffs for the purposes of this application, refers to not only the dedication of the schools but to the establishing of the schools themselves. There is no ambiguity in the letter which was reasonably capable of construing it to be representing that any responsibility was being taken by the first defendant himself to pay or reimburse the plaintiffs. To the extent that it extends that approval in principle to providing some funding, the letter makes clear that any funding would be provided by the second defendant, a separate entity, not by the first defendant personally. That is supported by the subsequent correspondence which refers to funding being provided by the second defendant and draft agreements being produced with the second defendant. [75] Accepting for the purposes of this application that the conduct of the third defendant could be attributed to the first defendant, it again does not take the plaintiffs’ case beyond what the first defendant’s counsel described as the bedrock of the plaintiffs’ case, namely that based upon the correspondence and conduct relied upon that could only, at best, support a promise that the second defendant not the first defendant would pay or reimburse the costs. It could not be reasonably interpreted as supporting a promise or representation that is capable of giving rise to an assumption, understanding or expectation that the first defendant would pay or reimburse the plaintiffs’ costs. Nor does the correspondence support the fact that the plaintiffs held such an expectation, assumption or understanding that the first defendant himself would fund the projects himself rather than the second defendant, which the first defendant knowing of that expectation, assumption or understanding induced by failing to deny that that was the position or correct that mistaken assumption. The fact that the first defendant may have been in a position to influence the second and third defendant in relation to the provision of funding by the second defendant does not advance the plaintiff’s case. [76] Nor are there any acts which could be relied upon from which to infer there was a meeting of minds or demonstrable acceptance of the state of things to give rise to the convention alleged vis a vis the First Defendant. [77] The impression which Mr Al Azhari had from the 6 April 2006 correspondence and 16 October 2006 meeting and the assumption that he made that the first and/or second defendant had agreed to pay based on all of the dealings pleaded does not advance the plaintiffs’ case, unless there is evidence to support the involvement of the first defendant in the adopting of such assumptions or beliefs. The conduct relied upon was not reasonably capable of being understood in the way the plaintiffs contend it should be understood in relation to the first defendant. An analysis of the matters relied upon by the plaintiffs in pleading its case against the first defendant and the further material relied upon in this application does not suggest that the case against -- 19 of 21 -- 20 the first defendant should go to trial to consider all the circumstances of the case. Nothing has been advanced to suggest that the context in which the conduct occurred could give rise to the expectation or assumption on behalf of the first defendant or that the plaintiffs’ communicated to the first defendant through the third defendant they were acting on that basis. [78] Given the above, this is not a case where the evolving nature of the law of estoppel, to the extent that was foreshadowed by the judgement of Nettle J in Crown Melbourne, supports the fact that the court should exercise its discretion to allow the matter to proceed to trial. The plaintiffs pleaded case does not provide any factual basis to suggest that the first defendant has engaged in any conduct to cause the assumption or expectation alleged in relation to the first defendant. Even if one acted upon the basis that it is sufficient for promissory estoppel for the representation or promise to be in a grey area, it was not capable of, in the circumstances known to the plaintiffs and the context in which the conduct was engaged in, misleading nor conveying to a reasonable person that the first defendant had agreed to pay or reimburse the costs of the school projects or that the plaintiffs could reasonably interpret it as falling within the “lower limit of the grey area”. The correspondence and conduct was consistent with the letter of 6 April 2006 that any funding would be by the second defendant. [79] I am satisfied that the plaintiffs’ claims as pleaded and as disclosed by the facts upon which they rely does not have any real prospect of succeeding against the first defendant. Nor is there any circumstance which supports the fact that a trial of the claim against the first defendant is required. [80] I am therefore satisfied that summary judgment should be given and the plaintiffs’ claims against the first defendant should be dismissed under r 293 UCPR. Strike Out [81] The defendants seek to strike out paragraphs 31 and 33 of the FASOC.49 As to paragraph 33, the complaint of the defendants is that there is no allegation that each party knew or intended that the other act on the basis of the alleged common understanding. The pleading is deficient in that regard. The plaintiffs’ counsel agreed, quite correctly to address the deficiency and replead paragraph 33. In relation to paragraph 31, I do not consider the pleading is embarrassing in relation to the second defendant and will not strike the allegation out. I have otherwise addressed the position of the first defendant in the summary judgment. Otherwise the defendants did not press the strike out of the remaining paragraphs, a number of complaints having been addressed by the FASOC. [82] Paragraphs 33 should be struck out with liberty to replead. Orders [83] I will therefore order that: 1. Summary judgment is entered in favour of the first defendant and the plaintiffs’ claims against the first defendant be dismissed; and 49 Not pursuing the other matters for the purpose of the application. -- 20 of 21 -- 21 2. Paragraphs 33 should be struck out with liberty to replead. [84] I will hear the parties as to costs. -- 21 of 21 --