Menzies Civil Australia Pty Ltd v CM Luxury Pty Ltd - [2025] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MENZIES CIVIL AUSTRALIA PTY LTD -v- CM LUXURY PTY LTD [2025] WASC 65
CORAM:   HOWARD J
HEARD:   26 FEBRUARY 2025
DELIVERED          :   26 FEBRUARY 2025
PUBLISHED           :   5 MARCH 2025
FILE NO/S:   CIV 2436 of 2023
BETWEEN:   MENZIES CIVIL AUSTRALIA PTY LTD
Plaintiff
AND
CM LUXURY PTY LTD
First Defendant
CLAIRE DAVIS COMPANY PTY LTD
Second Defendant
CM LUXURY PTY LTD
First plaintiff by counterclaim
CLAIRE DAVIS COMPANY PTY LTD
Second plaintiff by counterclaim
MENZIES CIVIL AUSTRALIA PTY LTD
Defendant by counterclaim

Catchwords:

Practice and procedure - Application for summary judgment - Claim for restitution against second defendant - Leave sought to apply for summary judgment where plaintiff seeks freezing orders based on restitutionary claim - Leave to apply out of time granted - Restitutionary claim cannot succeed - Summary judgment application granted - Freezing order application dismissed - Application to strike out parts of reply and defence to counterclaim where disposition will not impact significantly on trial - Strike out application substantially dismissed

Legislation:

Nil

Result:

Summary judgment application granted
Freezing order application dismissed
Strike out application substantially dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr K A Dundo
First Defendant	:	Mr J Healy
Second Defendant	:	Mr J Healy
First plaintiff by counterclaim	:	Mr J Healy
Second plaintiff by counterclaim	:	Mr J Healy
Defendant by counterclaim	:	Mr K A Dundo

Solicitors:

Plaintiff	:	KD Legal (Perth)
First Defendant	:	Minter Ellison
Second Defendant	:	Minter Ellison
First plaintiff by counterclaim	:	Minter Ellison
Second plaintiff by counterclaim	:	Minter Ellison
Defendant by counterclaim	:	KD Legal (Perth)

Cases referred to in decision(s):

CM Luxury Pty Ltd v Menzies Civil Australia Pty Ltd [2023] WASC 340
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Hegarty v Keogh (No 2)[2023] SASCA 30
Pavey & Matthews v Paul [1987] HCA 5; (1987) 162 CLR 221
Redland City Council v Kozik [2024] HCA 7; (2024) 98 ALJR 544
Skilled Group v CSR Viridian Pty Ltd [2012] VSC 290

HOWARD J:

(This decision was delivered extemporaneously on 26 February 2025 and has been edited from the transcript).

There are three applications before the Court for decision, they being:
1.the second defendant's (Claire Davis Co) application for summary judgment dated 11 December 2024;
2.the defendants' application to strike out parts of the amended reply and amended defence to counterclaim dated 12 February 2025; and
3.the plaintiff's (Menzies Civil) amended application for freezing orders and ancillary orders dated 20 February 2025.

Background

There have been numerous actions and applications between the parties, which it is generally unnecessary to recite for the purposes of deciding these applications.
The background to these applications is broadly as follows:
1.Claire Davis Co is the registered proprietor of land at Bindoon in this State;
2.arrangements were made between the first defendant (CM Luxury) and Menzies Civil for the latter to do earthworks at the Bindoon property. I have used 'arrangements' as a neutral expression for the time being;
3.it appears that CM Luxury appointed an independent superintendent (Peritas) for the works at the Bindoon property;
4.Menzies Civil carried out works at the property;
5.Menzies Civil says that it first mobilised at the Bindoon property in about December 2021;
6.between about January 2022 and December 2022, Menzies Civil performed earth works at and on the Bindoon property;
7.at about the end of September 2023, Menzies Civil purported to terminate all contractual arrangements with CM Luxury and, shortly after, demobilised from the Bindoon property;
8.Menzies Civil contends that the original contract sum agreed between the parties was $10,040,743 exclusive of GST, and this appears to be common ground;
9.Menzies Civil asserts that it has not been paid about $2.8 million including GST for the earthworks performed; and
10.Menzies Civil does not assert any contract for the earthworks, or otherwise, with Claire Davis Co.

The current pleadings

Menzies Civil's current pleading is its third amended statement of claim, filed 13 February 2025 (SOC).
The defendants' most recent pleading is their further amended defence and counterclaim, filed 31 January 2025 (defence and counterclaim). That pleads to Menzies Civil's second amended statement of claim filed 30 October 2024. There is not a pleading to what I have defined as the SOC.
Menzies Civil filed a second amended reply and second amended defence to counterclaim on 13 February 2025 (reply and defence to counterclaim) which pleads to the defence and counterclaim.

The plaintiff's pleaded case

Menzies Civil's pleaded case against CM Luxury is broadly as follows:
1.on about 11 January 2022, Menzies Civil signed a Formal Instrument of Agreement which had special conditions, specifications, drawings and digital terrain models;[1]
2.the signed Formal Instrument of Agreement was lodged by Menzies Civil on an online platform, DocuSign, via a link provided by one of the directors of CM Luxury;[2] and
3.that was the 'Initial Contract' entered into between CM Luxury and Menzies Civil.[3]
[1] SOC [12].
[2] SOC [15].
[3] SOC [12].
There are then, presumably in the alternative, other contracts pleaded as being entered into from about 16 January 2022, when CM Luxury issued payment certificates to Menzies Civil which matched progress claims made by Menzies Civil for the works done to date.[4] I will not recite all of them but note by way of example:
1.on about 16 January 2022, CM Luxury, by issuing to Menzies Civil 'Payment Certificate 1', is alleged to have entered into a contract with Menzies Civil;[5] and
2.on 16 February 2022, CM Luxury issued to Menzies Civil 'Payment Certificate 2' and so entered into a contract with Menzies Civil.[6]
[4] See, for example, 'PC1 Contract' at SOC [17] and 'PC2 Contract' at SOC [18].
[5] SOC [17].
[6] SOC [18].
The plea then is made that Menzies Civil performed work pursuant to the contracts and at the direction of CM Luxury and/or its superintendent between January and October 2022.
Menzies Civil then pleads it provided a 'Final Payment Claim' to CM Luxury on about 6 October 2023, which claim, as pleaded, included:
1.amounts for work which had not been certified to that date;
2.works performed in and up to late December 2022; and
3.costs in connection with demobilisation.[7]
[7] SOC [47].
The Final Payment Claim is pleaded to be in the sum of $2,860,959.50 including GST.
Menzies Civil also pleads claims for additional amounts which arose from a number of variations pleaded in SOC [48] to [66].
It appears that the additional amounts for the variations are claimed in addition to the amounts claimed in the Final Payment Claim.
I should note here that the payment certificates are pleaded to certify an amount to be paid, and it is pleaded that the certified sum was the 'net of an amount for retention'.[8]
[8] SOC [17], [18].
Menzies Civil pleads that:
If there was no contractual arrangement between [CM Luxury] and [Menzies Civil] as to [CM Luxury] retaining monies under payment certificates 1 to 10, being a total amount of $212,580.24, as specified in payment certificate 10 (Retention Moneys) then those moneys were retained under a mistaken belief of [Menzies Civil] and [CM Luxury].[9] (original emphasis)
[9] SOC [67].
That is the first place where the plaintiff pleads on the basis of there being no contractual arrangement between CM Luxury and itself.
Menzies Civil pleads that it has received Total Payments from CM Luxury of $4,442,927.04 including GST.[10]
[10] SOC [70].
Menzies Civil pleads that the total value of the work completed by it was $6,794,148.84 exclusive of GST, and it is owed $2,351,221.80, also exclusive of GST, by CM Luxury. Menzies Civil also, or alternatively, claims that amount from Claire Davis Co.[11]
[11] SOC [71] - [72].
I now turn to the pleas against Claire Davis Co.
The pleaded premise of the case against Claire Davis Co is that Menzies Civil's work at the Bindoon property was not pursuant to a contract between it and CM Luxury.
It is then pleaded that Claire Davis Co:
… obtained the benefit of those works because those works were performed and installed on the Property and [Claire Davis Co] is and always was the true owner of those works, since they were installed in or annexed to the Property, as those works were procured by [CM Luxury] and for the benefit of [Claire Davis Co] in developing the Property for commercial purposes.[12]
[12] SOC [74(c)].
Menzies Civil then goes on to plead:
(a)the Property, since 2023, is being marketed for sale by [Claire Davis Co], with the partially built racetrack, lagoon and resort, being promoted as "Track Moolia" in a brochure prepared by [Claire Davis Co];
(b) [Claire Davis Co] knew the Initial Contract had not been executed by [CM Luxury], [Claire Davis Co] never considered that there was a contract of works agreed between [CM Luxury] and [Menzies Civil] and [Claire Davis Co] knew [CM Luxury] intended not to execute the Initial Contract;
…
(c) [Claire Davis Co] never instructed nor requested [Menzies Civil] to stop working on the Property nor stopped [Menzies Civil] working on the Property;
(d) [Claire Davis Co] freely accepted the benefit of [Menzies Civil's] works on the Property; and
(i) [Menzies Civil's] works on the Property are being used as a primary selling point for the Property by [Claire Davis Co] and are an incontrovertible benefit to [Claire Davis Co]; and
(ii) it is otherwise unconscionable for [Claire Davis Co] to not pay [Menzies Civil] for that benefit; or
(iii) [Claire Davis Co] is liable for a reasonable amount for, or value of, the works/services provided or an amount for the increase in the property value, as a consequence of [Menzies Civil's] works;
(e) there was a failure of consideration for those works, as to [Claire Davis Co] because it never paid any monies to [Menzies Civil] for those works and [Claire Davis Co] has been unjustly enriched, and is liable to [Menzies Civil], either solely, or jointly with [CM Luxury] to make restitution for those works; and/or
(f) there was a failure of consideration for those works, as to [CM Luxury] and:
(i) [CM Luxury] has been unjustly enriched or is liable to make restitution to [Menzies Civil] for those works, because it requested and procured those works from [Menzies Civil]; or
(ii) [Menzies Civil] is entitled to a reasonable value for the works it performed at the request and direction of [CM Luxury] on the grounds of quantum meruit/valebant; and
(iii)the works [Menzies Civil] performed were fully referrable to the scope exchanged between the parties, as the works progressed.[13]
[13] SOC [75(a) - (f)]; Particulars not included.

Defendants' pleaded position

The defendants assert that there was a written agreement by no later than 5 January 2022 between CM Luxury and Menzies Civil.[14] I observe that is relevantly the same plea the defendants made in their initial defence and counterclaim, filed 22 May 2024.
[14] Defence and counterclaim [12].
The defendants positively plead which documents comprise the written contract.
The defendants admit that the contract sum in the written contract they assert was $10,040,743 excluding GST.[15]
[15] Defence and counterclaim [12B].
The defendants deny that there were separate contracts created by CM Luxury issuing the 'matching' payment certificates.[16]
[16] Defence and counterclaim [17] and continuing.
Without going into its detail, the defence broadly admits that:
1.Menzies Civil purported to do the pleaded work at the Bindoon property;
2.admits that progress claims were made;
3.denies Menzies Civil's entitlement to be paid for all of the variations;
4.asserts that certain work in the variations was not certified by CM Luxury's superintendent; and
5.asserts that works performed by Menzies Civil were defective at least in part in answer to the claim for monies retained.
The defendants say CM Luxury does not owe any money to Menzies Civil.
Claire Davis Co denies owing any money to Menzies Civil, as it was not a party to the contract between Menzies Civil and CM Luxury.
In response to the restitutionary claim against Claire Davis Co made by Menzies Civil, the defendants or, perhaps more accurately, Claire Davis Co, relevantly:
(a)[admits] there was a contract between [Menzies Civil] and [CM Luxury] as pleaded in paragraphs 12, 12A and 12B above, therefore there is no reasonable basis upon which the additional contracts alleged in paragraphs 74(a) and 74(b) could arise and given that there was a contract between [Menzies Civil] and [CM Luxury], there is no basis on which a claim for unjust enrichment can arise as between [Menzies Civil] and [CM Luxury] or [Claire Davis Co];
(b)[says] that [Claire Davis Co] has received no benefit from the works completed by [Menzies Civil], and that it was [CM Luxury] who benefited from the works completed by [Menzies Civil];
(c)[says] if, which is denied, there was a relevant benefit provided to [Claire Davis Co], then [Claire Davis Co] had no opportunity to, and did not in any event, freely accept that benefit by reason that the Project Site was in possession of [CM Luxury] pursuant to the lease arrangement pleaded in subparagraphs 74 (d) and (e) below;
(d)[says] that on 15 September 2021, [Claire Davis Co], as lessor, entered into a lease agreement with [CM Luxury], as lessee, for the Project Site for a term of 25 years commencing on 15 September 2021 (Lease);
Particulars
The Lease was signed by Hartono Susanto Halim for [Claire Davis Co] and Shaw Eng Heng for [CM Luxury].
…
(f)[says] that on or about 6 January 2025, [Claire Davis Co], as lessor, entered into a new lease agreement dated 11 December 2024 with [CM Luxury], as lessor, for the Project Site for a term of 19 years (New Lease)…[17] (original emphasis)
[17] Defence [74(a) - (d), (f)].

CM Luxury's position as to the contract with Menzies Civil

Looking at all of the iterations of the defence and counterclaim filed in the action, CM Luxury has always taken the position that it had a written contract for works at the Bindoon property with Menzies Civil.
It may be accepted, as Menzies Civil submits, that before this action, that has not always been CM Luxury's position. As recorded by Seaward J in CM Luxury Pty Ltd v Menzies Civil Australia Pty Ltd [2023] WASC 340 at [3] - [4], [13], [16] and [21(a)], in seeking to set aside Menzies Civil's statutory demand, Mr Halim, then a director of CM Luxury, made an affidavit which asserted that CM Luxury had never agreed to contractual terms with Menzies Civil.
By an affidavit made and filed 11 December 2024 in these proceedings (Halim affidavit), Mr Halim said, without explanation, something quite different.
While Mr Halim has changed his position in his evidence without explanation (and which may give rise to questions elsewhere), it is plain that in these proceedings, CM Luxury has, from the beginning, admitted that there was a written contract between it and Menzies Civil pursuant to which Menzies Civil did the work at the Bindoon property.
Further, as seen, Menzies Civil has at no stage asserted a contract between it and Claire Davis Co (and, indeed, no party has done so).

Matters between CM Luxury and Claire Davis Co

Mr Halim states in his affidavit in these proceedings that on 15 September 2021, there was a written lease between Claire Davis Co, as lessor, and CM Luxury, as tenant, for the Bindoon property.[18]
[18] Halim affidavit [8].
It is not pleaded or asserted by the defendants that Menzies Civil knew of a lease between CM Luxury and Claire Davis Co at any material time.
In the September 2021 Lease, by cl 28 and cl 35(1), CM Luxury was to return the Bindoon property to its original condition at the termination of the lease.[19]
[19] Halim affidavit [8] and Attachment 'HSH-3' pages 32 - 33, 36.
It is not pleaded nor asserted that Menzies Civil was aware of that obligation.
Menzies Civil has asserted or agitated the proposition that the September 2021 Lease was void under the Planning and Development Act 2005 (WA), as it was for more than 20 years and the Commissioner had not consented to it. That may be the case. I do not need to determine that for present purposes.
In response to that proposition, Mr Halim has deposed that CM Luxury and Claire Davis Co entered into a new lease on 11 December 2024 for the term of 19 years on the same terms and conditions that the September 2021 Lease had been entered into.[20] That position is now reflected in the defence and counterclaim, particularly at [74(f)].
[20] Halim affidavit [13] and Attachment 'HSH-4'.

Considering Menzies Civil's plea for restitution against Claire Davis Co

It is most significant, in my view, that, as pleaded, the premise of the plea against Claire Davis Co is that the earthworks were not made or done pursuant to a contract between Menzies Civil and CM Luxury.
As seen, on my review of the pleadings between Menzies Civil and CM Luxury, it is plain that CM Luxury admits there was a written contract between it and Menzies Civil for the work which is the subject of its alternative claim in restitution against Claire Davis Co.
Menzies Civil's written submissions in the summary judgment application seek to assert that there has not been an admission made in the defence and counterclaim to the pleas made in the SOC of the existence of a written contract between Menzies Civil and CM Luxury.[21] That proposition was further agitated at the hearing before me. That, with respect, seems to me not to be to the point.
[21] Plaintiff's written submissions dated 20 February 2025 (Plaintiff's submissions) [16].
It may be that there are issues between Menzies Civil and CM Luxury as to exactly which documents constitute or evidence the contract. However, it is plain that the claim in this action will be determined by reference to a contract or contracts between Menzies Civil and CM Luxury.
Based on that alone, I consider that the claim made by Menzies Civil against Claire Davis Co must fail, as the premise that there was no contract between Menzies Civil and CM Luxury will not, on any view, be made good.
That finding, in my view, would be sufficient to dispose of the summary judgment application in favour of Claire Davis Co.
However, the claim against Claire Davis Co in restitution seems to me to be bound to fail more broadly.
In its written submissions,[22] Menzies Civil quoted from Hegarty v Keogh(No 2)[23] in which the Court, referring to Equuscorp Pty Ltd v Haxton,[24] observed:
… the High Court summarised the 'part played by unjust enrichment' in determining a claim for money had and received, emphasising the 'taxonomical function' of unjust enrichment:
(a)Recovery depends upon the enrichment of the respondent by reason of one or more recognised classes of 'qualifying or vitiating' factors;
(b)The category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or a failure of consideration, by reason of which the enrichment of the respondent is treated by the law as unjust;
(c)When identified in this way, unjust enrichment gives rise to a prima facie obligation in a respondent to make restitution;
(d)This prima facie obligation can be displaced by circumstances which the law recognises would make an order for restitution in favour of the claimant unjust.[25]
[22] Plaintiff's submissions [29].
[23] Hegarty v Keogh (No 2) [2023] SASCA 30.
[24] Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498.
[25] Hegarty v Keogh (No 2) [190].

Menzies Civil submitted that the vitiating factor, as seen in Skilled Group Limited v CSR Viridian,[26] is the free acceptance or otherwise the failure of consideration.[27]
[26] Skilled Group v CSR Viridian Pty Ltd [2012] VSC 290 (Skilled).
[27] Plaintiff's submissions [3].
It is significant that in oral submissions before me at the hearing on 26 February 2025, counsel for Menzies Civil disavowed there being any 'vitiating factor' in the sense that it has been used in the restitutionary authorities.[28]
[28] ts 58.
In Redland City Councilv Kozik,[29] the majority said:
In Farah Constructions Pty Ltd v Say-Dee Pty Ltd, this Court said that restitutionary recovery for unjust enrichment 'depends on the existence of a qualifying or vitiating factor falling into some particular category', giving examples of such factors that included mistake. Another such factor is failure of consideration. … In the law of unjust enrichment, where 'consideration' is concerned with a reason for a transaction, the concept has another, quite different, meaning. It means a 'basis', 'purpose', or 'condition' for a transaction by which one party confers a benefit upon another. That basis, purpose, or condition for the transaction might be a factual or legal state of affairs.[30]
[29] Redland City Councilv Kozik [2024] HCA 7; (2024) 98 ALJR 544.
[30] Redland City Council v Kozik [183] (Gordon, Edelman and Steward JJ).
Menzies Civil relied particularly on the case of Skilled. With respect, in my view, that case (nor the decision in Redland City Council) do not assist it.
Skilled had some similarities with the present case.
CSR was the plant owner and entered into three head contracts with Pilkington to perform works at its glass manufacturing plant.[31]
[31] Skilled [2] - [4].
Pilkington contracted then on a subcontract basis with Skilled Group.[32] At [23], Vickery J stated that the fact of there being a contract between the relevant proprietor and the head-contractor took away any basis in law for a third-party subcontractor or supplier to make a claim on the proprietor by way of restitutionary quantum meruit for all or part of that work.
[32] Skilled [5], [7].
While factually it is not exactly the same situation here, it is my view that the relationship between Skilled Group and CSR was factually in that case closer than the relationship between Menzies Civil and Claire Davis Co in this case.
Vickery J, citing Deane J in Pavey & Matthews v Paul,[33] held:
… that the obligation to pay fair and just compensation for a benefit which has been accepted can only arise in a case where there is no contract in place to govern the rights and obligations of the parties. It is the very fact that there is no contract or that it is frustrated, avoided or unenforceable, that provides the occasion for (and part of the circumstances giving rise to) the imposition by law of the obligation to make restitution.[34]
[33] Pavey & Matthews v Paul [1987] HCA 5; (1987) 162 CLR 221.
[34] Skilled [179].
Following a recitation of the contractual positions as found, Vickery J stated:
If follows that the Proprietor (CSR) could not have requested or freely accepted the Sub-contractor's works (i.e. Skilled's works) because at all material times these works were performed not directly for CSR but for Pilkington pursuant to the Sub-contracts. The 'benefit' that was 'accepted' by the Proprietor (CSR) was in fact the works which the Head Contractor (Pilkington) had undertaken to perform for the Proprietor, and for which the Proprietor had agreed to pay the Head Contractor.[35]
[35] Skilled [182].
The difficulties identified for that plaintiff arising because there was a contract in place which governed the rights and obligations of the parties, there being Pilkington and Skilled Group, are similar here for Menzies Civil because of the contract between it and CM Luxury.
Vickery J then made observations as to 'free acceptance', which was something heavily relied upon by Menzies Civil in this application.
His Honour stated:
In sum, CSR has no 'freely accepted' anything from Skilled where:
a.CSR received the benefit of the completion of the works as part of Pilkington's performance of its obligations under the Head Contract, such that anything that CSR 'accepted' was proffered by Pilkington; and
b.CSR has paid Pilkington what it was contractually liable to pay for the performance of its obligations under the Head Contract, including the completion of the works, so that CSR did not receive anything for 'free'.[36]
[36] Skilled [183].
His Honour observed that CSR did not have any opportunity to reject the proffered services where the performance of the works as part of the Head Contract was a matter for Pilkington and, at all times, Skilled Group undertook the performance of the works in its contractual arrangements with Pilkington.[37]
[37] Skilled [184].
It seems to me that any benefit which the Claire Davis Co obtained here was not obtained from its relationship, if any, with Menzies Civil but must, as a matter of law, have been obtained from its relationship with the CM Luxury.
As said, in my view, although the documents comprising the contract and its terms may be in dispute, it is plain that there is an acceptance that there was a contract between Menzies Civil and CM Luxury for works done at the Bindoon property, and there was no contract with Claire Davis Co.
While it may be accepted for the purposes of the argument that there were common directors between the defendants at the material times, the work was done for and paid for by CM Luxury.
Assuming for present purposes that Menzies Civil had no visibility as to a lease between CM Luxury and Claire Davis Co, it (Menzies Civil) nonetheless had a contractual counter-party that was to pay it an agreed contractual sum for the work it was to perform.
How any benefit of that work was to be accounted for between CM Luxury and Claire Davis Co was not part of Menzies Civil's contractual position with CM Luxury.
For example, there may have been a lease, as the defendants assert, by which CM Luxury was to remove any of the improvements to the Bindoon property at the conclusion of the lease.
Or, as an alternative, Claire Davis Co may not have charged rent to CM Luxury as part of their contractual relationship and as compensation for the work being performed on its Bindoon property and remaining on the property after the lease. Or there may have been no lease at all, and Claire Davis Co was paying CM Luxury fees for managing the work being done and reimbursing CM Luxury for the costs of its (CM Luxury's) contract with Menzies Civil (which would be similar factually to Skilled).
All of those alternatives would have an impact on whether it could be asserted on any basis that there was a free acceptance of the work on the Bindoon property by Claire Davis Co.
In setting out those possibilities, I am not suggesting that Menzies Civil was aware of them or that I have made any finding that any of them was the case.
Rather, they go to show, as Vickery J was identifying in Skilled, why Menzies Civil's simple case against Claire Davis Co in restitution on the slim facts pleaded to support it, which I have quoted above, cannot be accepted or succeed without significantly more in the way of a pleading and articulation of the basis for a viable claim in restitution.
Menzies Civil's case impermissibly seeks to avoid the legal significance of its contract with CM Luxury.
In my view, it is plain enough that the restitutionary claim made against Claire Davis Co cannot succeed, and, further, it should not be allowed to proceed at this time when it is being sought to found the application for a freezing order and ancillary orders.
I have not included in these reasons the principles applicable to summary judgment. They are well known and, most relevantly for present purposes, point to the fact that summary judgment should not be granted except in the plainest of cases. I consider, properly analysed, that this is such a case.

Claire Davis Co requires leave for summary judgment application

Menzies Civil points to the fact that the application for summary judgment was not brought promptly (and indeed is grossly out of time) and that Claire Davis Co has, in the interim, taken steps in the proceeding such as amending its pleadings, and the parties have attended a mediation.
All of those matters might be accepted. I also accept the force of the authorities which point to the very good reasons for parties to comply with the ordinary period specified in the rules.
All other things being equal, that Claire Davis Co is so significantly out of time to bring a summary judgment application and where its delay is not really satisfactorily addressed on the evidence, would usually have the effect that leave to apply out of time would not be granted.
However, in the present case Menzies Civil has sought a freezing order and ancillary orders against Claire Davis Co which seek to significantly interfere with Claire Davis Co's ordinary rights and require it to produce information to Menzies Civil.
I note that a freezing order was sought against Claire Davis Co first on 30 October 2024 on an ex parte basis. Following the dismissal of its first freezing order application, Menzies Civil brought a further application, which it filed on 5 December 2024 and, as noted, it amended that application on 20 February 2025.
The summary judgment application made 11 December 2024 might be seen, properly, in my view, to be reactive to, or justified by, the further freezing order application made by Menzies Civil on 5 December 2024.
I do not need to recite the authorities to the effect that freezing orders and the ancillary orders which may be granted are invasive and extraordinary and should be granted with care. As will be seen, the resolution of the summary judgment application has had a very real impact on the application made by Menzies Civil for a freezing order.
Indeed, quite properly, counsel for Menzies Civil accepted that if the summary judgment application were to be granted, then the freezing order application would fall away.
In those circumstances, I think it is in the interests of justice that I extend the time for Claire Davis Co to bring its summary judgment application.

Menzies Civil's application for freezing orders

Previously, Menzies Civil sought to maintain a caveat against the Bindoon property on the basis it had an equitable lien on the property.
Proceedings to test the maintenance of that caveat were dismissed by consent.
The significance of that is that the only basis presently contended for the grant of the freezing order and ancillary orders is that Menzies Civil has a case in restitution against Claire Davis Co.
As set out above, I have reached the view that Claire Davis Co ought be granted summary judgment in relation to that restitutionary claim.
In those circumstances, there is no extant basis on which Menzies Civil might maintain, nor, with respect, does it seek to, its application for a freezing order and ancillary orders against Claire Davis Co.
I would, therefore, dismiss that application for a freezing order and ancillary orders.

Defendants' application to strike out parts of the reply and defence to counterclaim

The defendant's strike out application, as noted, was filed 12 February 2025 and seeks that [6], [23], [33] and [35] of the amended defence and counterclaim, filed 5 December 2024, be struck out.
I note that in the reply and defence to counterclaim, [6], [23], [35] have not changed, and [33] has only been amended by the inclusion of (e) in [33].
The pleas in the reply and defence to counterclaim at [33] go to pleas in respect of which I would grant summary judgment.
That pleading has to be reviewed accordingly, and I would accede to the strikeout application as a consequence of the summary judgment application for [33].
In relation to the application in relation to [6], [23] and [35], it seems to me that the application will not resolve anything significant enough to make a difference to the conduct of the trial.
While I accept that the pleas may be confused or confusing, I do not consider that striking them out will make a significant difference to the conduct of the trial in the circumstances where the issues of what were the constituent documents and what were the terms of the contract will be very much in dispute and will need to be resolved at trial. So I would not strike out [6], [23] and [35] on the defendants' application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
5 MARCH 2025