Supreme Court of NSW
The plaintiff brought a Notice of Motion for summary judgment pursuant to UCPR rule 13.1.
On 21 May 2019, the parties entered into a contract for sale of land in relation to a property at Chipping Norton with a purchase price of $2.1M. Unusually, the contract provided for a deposit of $2M.
On 11 June 2019, the parties entered into a Deed of Acknowledgment of Debt which the plaintiff referred to as evidence that it had paid the $2M deposit.
The plaintiff claimed to be ready, willing and able to complete the contract.
On 27 November 2019, the plaintiff commenced proceedings seeking specific performance of the contract for sale.
On 2 April 2020, the plaintiff filed a Notice of Motion that was supported by an affidavit of one of its directors.
The Notice of Motion was resisted by the defendant (without adducing any evidence) by citing numerous objections to aspects of the plaintiff’s affidavit. The Notice of Motion was, by consent, heard on the papers.
His Honour acknowledged that the plaintiff’s affidavit provided evidence to satisfy the elements of UCPR 13.1 but then noted:
“The real issue is whether the Court should, in accordance with the principles that apply to applications for summary judgment, proceed to exercise the power to give the summary judgment sought.”
His Honour also described that the power to exercise summary judgment should:
- “…must be exercised sparingly”
- With “exception caution”
- “where there is a high degree of certainty about the ultimate outcome”
In relation to the plaintiff’s submissions, his Honour described them as having “some force”. However, he decided that the case was not “so clear cut” as to make summary judgment appropriate.
The Notice of Motion of was dismissed and the plaintiff was ordered to pay the defendant’s costs of the Motion.
Anyone considering an application for summary judgment should bear in mind the bar is set very high and that the Court will not lightly deny another party the right to a contested hearing.
In this instance, it appears the Court essentially agreed with the evidence of the plaintiff on the Notice of Motion but still determined that there was sufficient uncertainty to justify a contested hearing.
A party who successfully defends an application for summary judgment should not become unduly emboldened because successfully resisting a motion for summary judgment is a very long way away from winning at trial.
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