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Summary judgment applications can be a useful tool to quickly resolve disputes before the Court. It can avoid the need to tender voluminous evidence and circumvent the cost and delay of proceeding to trial.

Rules 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) allow a plaintiff (or defendant) to apply to the Court to have a matter summarily determined where there is:

1. no real prospect of success (whether that be successfully claiming or successfully defending); and
2. no need for a trial of all, or part of, the claim.

The Courts have emphasised that:

1. summary judgment processes should only be used in the clearest of cases; and
2. plaintiffs should not be prevented from advancing a case that may succeed, so the Court must approach applications for judgment by defendants with caution.

facing summary dismissal

Macpherson Kelley, acting for the first and second plaintiff, was recently faced with a bold application by a defendant for summary dismissal of the plaintiffs’ claim.

The proceedings concerned a disputed loan agreement. Relevantly:

1. money was transferred from the plaintiffs to the defendant between 2009 and 2011;
2. the plaintiffs alleged that the defendant was obliged to repay the money upon demand; and
3. despite demand being made in 2021, the money was not repaid.

Both parties relied on a written document signed unilaterally by the plaintiffs which described the loan as being “on call”.

Following the closure of pleadings, the defendant filed an application for summary judgment seeking dismissal of the claim on the basis that the action was time-barred by section 10 of the Limitations of Actions Act 1974 (Qld) which prescribes a limitation period of 6 years after a cause of action arises.

Macpherson Kelley maintained throughout the proceedings that:

1. the use of the words “on call”, was intended to mean that a demand was a necessary pre-condition to payment, such that the limitation period did not commence until demand was made;
2. in light of the above, the matter involved significant disputes of fact (regarding the terms of the loan agreement); and
3. was not suitable for summary determination.

summary judgment: prospects of success

When did the cause of action arise?

Whether the plaintiffs’ action was time-barred depended upon when the breach occurred.

The defendant’s position relied on the leading decision in Ogilvie v Adams [1981] VR 1041 (Ogilvie), where Fullagar J affirmed the approach in Young v Queensland Trustees Ltd (1956) 99 CLR 560 that “a loan of money payable on request creates an immediate debt”.

In relying on that authority, the defendant invited the Court to adopt a narrow construction of the words “on call” to mean “on demand”, in accordance with the Ogilvie position (which would have resulted in the action being out-of-time).

Question of construction

While the Court in Ogilvie determined that a loan repayable on demand is immediately repayable, his Honour Fullagar J remarked that “other words or terms may appear in the contract which may be in the circumstances sufficient to show an intention that the cause of action is not to arise until some actual demand or some form of demand is made or until period after demand has elapsed”.

Accordingly, the plaintiffs submitted that, whether the words “on call” were sufficient to contract out of the Ogilvie position is a question of construction, therefore the dispute was not appropriate for summary determination.

Decision

The application was heard before Judge Porter QC. While the defendant decided not to pursue the substance of the application prior to the hearing, following the exchange of submissions,(and sought only to be heard on costs), his Honour was nonetheless required to consider whether the defendant’s application would have otherwise been successful.

His Honour dismissed the defendant’s application and awarded the plaintiffs their costs. In doing so, his Honour made the following remarks:

1. The defendant invited the Court to adopt a narrow construction and subtle reading of the words “on call” in circumstances where:
   • the plaintiffs have indicated an intention to contest that construction; and
   • the plaintiffs have already submitted that any “demand” was to be read as being a precondition to payment.
2. The relevant case law referred to by the defendant (Ogilvie) was not definitive authority for every loan repayable upon demand, rather, was subject to the specific facts of each case and true construction of the agreement. In that regard, Ogilvie was determined in the context of trial, where the Judge in that case had the opportunity to properly interpret the meaning of the terms of a loan by reference to documents tendered at trial. That was not the case here.
3. Based upon the parties’ pleadings (which contained various disputed allegations, including in respect of the loan agreement) , there was, at least, a wholly contestable question as to the terms of the loan agreement, which would require proper consideration by the Court.
4. It was within the defendant’s realm of opportunity to request particulars of that pleaded term of the loan agreement (to the extent there was a dispute as to its true construction), before pursuing an application for summary dismissal.

key takeaways

1. An application for summary determination should be carefully considered and only be filed by a party in the clearest of cases.
2. Where other means may be exhausted first, such as a request for particulars of the other party’s pleadings, those should be exercised.
3. Where there is a significant dispute as to facts, or a matter which requires construction or proper judicial consideration, summary determination is not likely to be appropriate.