Harlap Nominees Pty Ltd as trustee for the Harlap No 2 Family Trust v Povey

Harlap Nominees Pty Ltd as trustee for the Harlap No 2 Family Trust has brought an application for summary judgment against Povey in the Supreme Court of Western Australia. The dispute arises out of an alleged breach of contract and a request for specific performance. The plaintiff, Harlap Nominees, seeks a declaration that Povey is in breach of an agreement dated 21 June 2016 and an order for specific performance. Harlap Nominees also claims damages for breach of contract, alternatively, a declaration that Povey is liable to pay damages for breach of contract.

The court had to decide whether to grant leave to the plaintiff to apply for summary judgment out of time, given the application was made three months after the agreed deadline. The plaintiff argued that the delay was due to unsuccessful negotiations between the parties to settle the matter. The court found that the delay did not prejudice the defendant and granted leave for the application. The court further examined the principles applicable to an application for summary judgment, emphasising the need for a high degree of certainty about the ultimate outcome if the proceeding went to trial.

The court considered the policy rationale for the time limit on summary judgment applications, which is to ensure they are brought promptly at an early stage of proceedings. The court found that the application was made before a defence had been filed and any substantive steps taken. The court also noted that there was no evidence of prejudice to the defendant from the delay. Based on these considerations, the court exercised its discretion to grant leave for the application for summary judgment out of time.

The court granted leave for the plaintiff to make its application for summary judgment out of time. The court ordered that the plaintiff may proceed with its application for summary judgment, and the defendant must file a defence within 14 days of the date of this order.