Gava & Anor v Grljusich & Anor

[1999] WASC 13

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Trusts and Trustees
2. › Accounts
3. › Taking of accounts
4. › Common account distinguished from account on footing of wilful default
5. › Whether leave to amend statement of claim to seek account on basis of wilful default after consent judgment directing common account
1. Trusts and Trustees
2. › Breach of trust
3. › Wilful default
4. › Distinction between wilful default (passive breach) and active breach of trust
5. › Requirement to plead wilful default
1. Practice and Procedure
2. › Amendment of pleadings
3. › Amendment after judgment
4. › Whether very strong ground shown to justify reopening
5. › Whether too late to amend to change basis of accounting

Quick Take

A plaintiff seeking an account on the footing of wilful default must plead wilful default in the statement of claim and prove at least one instance; a consent order for a common account cannot be converted to an account on the basis of wilful default by post-judgment amendment without a very strong ground being shown. The conduct alleged must constitute a passive breach of trust (omission) rather than an active breach of trust (misuse of funds).