Montgomery v Montgomery - [2025] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MONTGOMERY -v- MONTGOMERY [2025] WASC 208
CORAM:   MASTER RUSSELL
HEARD:   18 JUNE 2024
DELIVERED          :   28 MAY 2025
FILE NO/S:   CIV 2723 of 2018
BETWEEN:   JAMES MONTGOMERY
Plaintiff
AND
TREVOR JAMES MONTGOMERY
Defendant
AND
TREVOR JAMES MONTGOMERY
Plaintiff by counterclaim
AND
JAMES MONTGOMERY
Defendant by counterclaim

Catchwords:

Practice and procedure - Summary judgment - Order 16 Rules of the Supreme Court 1971 (WA) - Application by defendant for summary judgment - Whether limitation questions should be determined summarily - Factual matters in dispute - Not a clear case in which summary judgment should be granted - Application for summary judgment dismissed - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 16, O 16 r 1(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J Tadros
Defendant	:	In Person
Plaintiff by counterclaim	:	In Person
Defendant by counterclaim	:	Mr J Tadros

Solicitors:

Plaintiff	:	Frichot Lawyers
Defendant	:	In Person
Plaintiff by counterclaim	:	In Person
Defendant by counterclaim	:	Frichot Lawyers

Case(s) referred to in decision(s):

Barrick Gold of Australia Ltd v FL Smidth Inc [2007] WASC 186
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Cologna Investments Pty Ltd (as trustee for and D Panizza Family Trust) v Caranna [2023] WASC 368
Currie v Currie (No 2) [2019] WASCA 2
Currie v Currie [No 2] [2017] WASC 312
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, 453
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)
Lee v Australian Executor Trustees Ltd (No 3) [2020] WASC 447
Letang v Cooper [1964] 3 WLR 573; [1964] 2 All ER 929 (CA); [1965] 1 QB 232
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 11) [2016] WASC 235
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Payne v Rowe [2012] NSWSC 685
Pearson v Connor [2024] WASCA 49
Pisano v South Metropolitan Health Service [2023] WASCA 80
Re Rules of the Supreme Court 1971 (WA) - ex parte Gates [2018] WASC 213
Shirley Elizabeth Williams and Gwyneth Margaret Fleming as administrators of the estate of Margaret Jane Congdon v Ross Gregory Congdon as administrator of the estate of Walter Edwin Congdon [2018] WASC 289
Smart v Prisoner Review Board (WA) [2012] WASC 48
Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997
The Commonwealth v Mewitt [1997] HCA 29; (1997) 191 CLR 471
The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westpac Banking Corp v Anderson [2017] WASC 106
Wise v Wise [2024] WASC 217

MASTER RUSSELL:

Introduction

The plaintiff, James Montgomery, commenced this action on 1 October 2018. It concerns a property described as Lot 236 on Plan 2671, being the whole of the land contained in Certificate of Title Volume 2084 Folio 747, known as 185 Central Avenue, Mount Lawley in the State of Western Australia (Property).
The defendant, Trevor James Montgomery, is James' son and the registered proprietor of the Property.
As the parties share the same surname, for clarity and with no disrespect to either of them, I will refer to them in these reasons by their first names.
This action has a long procedural history, which is set out in some detail later in these reasons.
It is not in issue that the Property was initially owned by James and transferred to Trevor, who became the registered proprietor of the Property, on 2 May 2002. Trevor lived in the Property between about April 2002 until about March 2005. Trevor moved out of the Property in March 2005 to live in another property he had bought with his partner at the time, and James moved in. James has continued to live at the Property since.
James claims that he has relied on representations made to him by Trevor between 2005 and 2014 in relation to the Property being transferred to him, and has paid mortgage payments, rates and other expenses relating to the Property, and made other contributions, including in respect of repairs and maintenance.
James' claim is set out in the amended statement of claim filed on 16 August 2021. He seeks declaratory relief that Trevor holds the Property on trust for him, alternatively on trust for him and Trevor in shares proportionate to their respective contributions to the Property, and an account or inquiry as to the beneficial ownership of the Property.
Trevor applies by chamber summons filed on 23 February 2024, as amended on 29 February 2024, for summary judgment (Application) and seeks an order to summarily dismiss James' claim pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). He also seeks leave to bring the Application out of time.
In support of the Application, Trevor relies on his affidavits sworn on 22 January 2024 and 31 May 2024 and a revised outline of submissions filed on 17 June 2024. Trevor's affidavit sworn on 31 May 2024 was read except for paragraph 18(b) and Annexure E, which refer to without prejudice communication.
In essence, Trevor contends that James has no reasonable cause of action or prospect of succeeding in his claim, which Trevor submits is statute barred, and there is no serious question to be tried or other reason why there ought to be a trial of the action. He also says that James' claim should be dismissed because of prejudice caused by James' delay in progressing it.
James opposes Trevor's application for leave to apply for summary judgment out of time and the Application. He relies on his affidavit sworn on 10 May 2024 and an outline of submissions filed on 24 May 2024.
In essence, James says no limitation defence is pleaded by Trevor, his claim is not statute barred, and any limitation questions should be dealt with at trial. It is also submitted on behalf of James that there is a serious question to be tried and there are factual disputes and matters concerning credibility of witnesses, which make it inappropriate for the claim to be determined summarily.
For the following reasons, I am not satisfied that this is an appropriate case for summary dismissal. Disputed issues of fact arise on the pleadings and the affidavits filed, including in relation to alleged conversations between the parties. The application for leave and the Application should be dismissed, and the matter proceed to trial as expeditiously as possible.

Procedural history

As noted, this action has a long procedural history.
The writ was filed on 1 October 2018. The writ was personally served on Trevor on 2 October 2018, who entered an appearance on 10 October 2018.
Orders were made on 27 November 2018 for James to file and serve a statement of claim by 11 December 2018, and for Trevor to file and serve a defence by 5 February 2019. Orders were also made referring the matter to mediation to be held on or after 11 February 2019.
Those orders were subsequently varied, and a statement of claim was filed on 27 February 2019. A defence and counterclaim was filed on behalf of Trevor on 27 September 2019.
By orders made on 21 November 2019 a mediation conference listed for 25 November 2019 was adjourned to 21 February 2020. There were two further adjournments of the mediation and, by orders made on 20 November 2020, the mediation, which at that time was listed for 24 November 2020, was adjourned sine die.
An amended statement of claim was filed on 16 August 2021, which Trevor applied to strike out pursuant to orders made on 13 September 2022.
Orders were made on 13 December 2022 dismissing Trevor's application to strike out the amended statement of claim and ordering Trevor to file and serve any amended defence and counterclaim by 24 January 2023, together with other procedural orders, including in relation to discovery.
An amended defence and counterclaim was filed on behalf of Trevor on 24 January 2023.
A reply to amended statement of defence and defence to counterclaim was filed on 7 February 2023 and a reply to the defence and counterclaim was filed on behalf of Trevor on 22 February 2023.
Trevor gave discovery by affidavit filed on 7 March 2023. James gave discovery by affidavit filed on 19 May 2023.
Trevor filed a further amended defence and counterclaim on 29 August 2023.
By chambers summons filed on 10 October 2023, as amended on 1 November 2023, James applied to strike out parts of the amended defence and counterclaim filed on 29 August 2023.
On 13 November 2023, orders were made extending the time for James to bring his strike out application and striking out paragraphs of the August 2023 amended defence and counterclaim, as set out in those orders. Trevor was also given leave to file and serve a further amended defence and counterclaim by 11 December 2023, which he did.
On 23 January 2024, James filed a reply to the further amended statement of defence and counterclaim dated 11 December 2023.
On 24 January 2024, Trevor filed a reply to James' reply and defence to counterclaim.
By letter to the case management registrar dated 25 January 2024, Trevor sought leave to apply for summary judgment pursuant to RSC O 16 r 1. Orders were made on 30 January 2024 for the parties to confer and for Trevor to file and serve any application for leave to apply for and obtain summary judgment by 1 March 2024.
Trevor filed his application for leave and for summary judgment pursuant to O 16 r 1 by the chamber summons dated 23 February 2024, as amended and filed on 29 February 2024.

James' claim as pleaded in the amended statement of claim

By his amended statement of claim filed on 16 August 2021, James claims that:
1.Until 2 May 2022, James was the registered proprietor of the Property.[1]
[1] Amended statement of claim filed 16 August 2021 (Amended statement of claim) [1].
2.On or about 8 April 2022, James and Trevor agreed that James would transfer the legal title to the Property to Trevor for the sum of $298,000 on the following conditions (Conditions):[2]
[2] Amended statement of claim [2].
(a)the sum of $298,000 represented an undervalue for the Property;
(b)in the next four to five years, the Property would be valued, and Trevor would pay James for the shortfall in consideration for the transfer of the Property to Trevor; and
(c)until such time as the condition in (b) had been complied with, Trevor would not encumber the Property further from an initial first mortgage granted in favour of the Commonwealth Bank of Australia (CBA),
3.The Conditions are particularised as having comprised a number of conversations said to have taken place at James' house at Guildford Road, Mount Lawley and at the Property in or about February, March and April 2002 between James, James' wife (who is now deceased), and Trevor.
4.On or about 8 April 2002, Trevor granted the CBA a mortgage over the Property to secure $180,000 (Initial Mortgage).[3]
[3] Amended statement of claim [4].
5.On or about 2 May 2002, Trevor became the registered proprietor of the Property.[4]
[4] Amended statement of claim [5].
6.On or about 8 April 2002, Trevor paid the sum of $168,000 to James.[5]
[5] Amended statement of claim [6].
7.In or about November 2002, Trevor borrowed a further sum of $10,000 against the Property.[6]
[6] Amended statement of claim [7].
8.The Conditions were never satisfied.[7]
[7] Amended statement of claim [8].
9.In or around March 2005, Trevor requested that James accept a transfer of the Property back to James and since, in or about 2005, Trevor has represented to James that he would transfer the title of the Property back to James (Representations).[8]
[8] Amended statement of claim [9].
10.The Representations are alleged to arise from a conversation in or about March 2005 between Trevor and James and witnessed by Trevor's fiancée at the time, Tanya Neilsen, at the Property and from various emails between Trevor and James between September 2012 and July 2014.[9]
[9] As particularised in paragraph 9 of the amended statement of claim.
11.In or around March 2009, Trevor registered a second mortgage on the Property in the amount of $440,000 (Second Mortgage).[10]
[10] Amended statement of claim [10].
12.In reliance on the representations, James has, since 2005:
(a)resided at the Property;
(b)repaired and maintained the Property;
(c)made a payment of approximately $50,000 to Trevor as consideration for the increased value in the Property due to market conditions since the transfer;
(d)made all mortgage repayments towards the Initial Mortgage on the Property in the amount of approximately $168,000; and
(e)made payments in the amount of approximately $30,000 in rates and levies associated with the maintenance of the Property.[11]
13.Since about 21 August 2018, Trevor represented to James that he would pay James the amount he had paid on the Initial Mortgage.[12]
14.Trevor lived in the Property from about April 2002 until about March 2005.[13]
15.By reason of the above matters, James has suffered detriment in relying on the Representations[14] and, despite demand by a letter dated 7 November 2018, Trevor has failed to transfer the Property to him.[15] The detriment and loss and damage James claims to have suffered includes $168,000 plus interest he has paid in repayments on the Initial Mortgage and rates and levies he has paid in respect of the Property over a period of over 13 years.
16.It is unconscionable for Trevor to retain the benefit of the legal title to the Property and the benefit of the monetary and non‑monetary contributions made by James in relation to the Property, and a constructive trust ought to be imposed in relation to the Property to James' benefit.[16]
[11] Amended statement of claim [11].
[12] Amended statement of claim [12].
[13] Amended statement of claim [13].
[14] As particularised in paragraph 14 of the amended statement of claim.
[15] Amended statement of claim [14].
[16] Amended statement of claim [15].
James seeks the following relief:
(a)a declaration that Trevor holds the Property on trust for James;
(b)alternatively, a declaration that Trevor holds all of the Property by way of constructive trust in James' favour;
(c)alternatively, a declaration that Trevor holds the Property on trust for James and Trevor in shares proportionate to their respective contributions, or in such shares as the court shall determine;
(d)an account or inquiry as to the beneficial ownership of the Property;
(e)an order that Trevor take all necessary steps to transfer to James his interest in the Property;
(f)alternatively, an order that the certificate of tile be changed to reflect James and Trevor's respective contributions.

The amended defence and counterclaim filed on 11 December 2023

There have been four iterations of the defence and counterclaim. By his further amended defence and counterclaim filed on 11 December 2023, Trevor:
1.Admits he is the registered proprietor of the Property.[17]
[17] Amended Defence and Counterclaim filed 11 December 2023 (Further Amended Defence and Counterclaim) [1].
2.Does not admit the agreement alleged to have been reached between James and him on 8 April 2022 and says that:
(a)in oral conversations between him and James, James agreed to sell the Property to Trevor for $460,000;
(c)Trevor purchased the Property from James by contract for sale of land dated 8 April 2002.[18]
[18] Further Amended Defence and Counterclaim [3].
3.Says that he and James agreed on a valuation for the Property of $460,000.[19]
[19] Further Amended Defence and Counterclaim [4].
4.Does not admit that he and James agreed to have the Property valued in four to five years following the sale of the Property and that Trevor would pay the 'shortfall' upon the Property being valued. He says to do so would have been uncommercial and he would not have been in a position to obtain finance to pay such 'shortfall'.[20]
[20] Further Amended Defence and Counterclaim [5.1].
5.Says that, in oral conversations between him and James in April 2002 at James' home:
(a)Trevor agreed to pay the remaining amount owed, being the difference between the agreed value of $460,000 and the $168,000 paid by Trevor;[21]
[21] Further Amended Defence and Counterclaim [5.2].
(b)James requested the remaining payment of $292,000 to be made when Trevor's financial position improved, which Trevor says he considered a 'Vendor Finance agreement' between him and James.[22]
[22] Further Amended Defence and Counterclaim [5.3].
6.Admits that, on or about 8 April 2002, he granted the CBA the Initial Mortgage over the Property to secure the amount of $180,000 and paid James $168,000.[23]
[23] Further Amended Defence and Counterclaim [7.1], [7.3].
7.Admits that he agreed that he would not encumber the Property further from the Initial Mortgage but says that changed when he was 'coerced out of his home' by James.[24]
[24] Further Amended Defence and Counterclaim [6].
8.Does not admit that he borrowed $10,000 against the Property in or about November 2002,[25] that the Conditions were never satisfied, or that he made the alleged Representations to James in or about 2005.[26]
[25] Further Amended Defence and Counterclaim [7.4].
[26] Further Amended Defence and Counterclaim [7.4], [7.5], [8.1]
9.Says that:[27]
[27] Further Amended Defence and Counterclaim [8], [8.1], [8.1.1] - [8.1.4].
(a)in 2005, James put undue pressure on Trevor to move out of the Property, which he did reluctantly.
(b)James refused to allow Trevor to conclude a house sale and sell the Property back to James because he said that the Property belonged to Trevor, and he did not want to incur stamp duty;
(c)the terms upon which the Property could be sold back to James and upon which Trevor would be compensated were never agreed. Trevor says that, on the contrary, in a conversation between them James assured Trevor that the Property remained his;
(d)James next asked Trevor to transfer the Property to him in 2012, at which time Trevor was not in a position to do so financially because of the mortgages on the Property.[28]
10.Admits that he took out the Second Mortgage, which he says James was aware of and agreed to and took no action to call in the 'Vendor Finance agreement'.[29]
11.Says that the Second Mortgage made it impossible for him to 'sell' the Property to James.[30]
12.Does not admit that James resided at the Property, repaired and maintained it or made the mortgage payments or payments of rates and levies associated with the maintenance of the Property in reliance on the Representations.[31]
13.Admits that James paid approximately $50,000 to him but says that was a contribution towards improvements made to the Property by Trevor, which he took under pressure from James and without the ability to obtain independent advice.[32]
14.Admits that, since 2005, James made mortgage payments for the Property in the sum of approximately $168,000 but says the purpose of the payments was not discussed or agreed.[33]
10.Admits that James paid approximately $30,000 in respect of rates and levies associated with the maintenance of the Property and says that he (Trevor) also made payments, which Trevor seeks to be compensated for.[34]
11.Otherwise denies the allegations in the amended statement of claim, denies James has suffered the detriment alleged in reliance on the Representations and that he is entitled to the relief claimed.[35]
[28] Further Amended Defence and Counterclaim [8.1.4].
[29] Further Amended Defence and Counterclaim [8.2].
[30] Further Amended Defence and Counterclaim [8.3].
[31] Further amended defence and counterclaim [8.4].
[32] Further amended defence and counterclaim [8.5].
[33] Further amended defence and counterclaim [8.6].
[34] Further amended defence and counterclaim [8.7], [8.8], [17].
[35] Further amended defence and counterclaim [9.3], [9.4], [10].

Trevor advances a counterclaim on three separate bases.
The first refers to the 'Vendor Finance agreement'. However, it is not clear on what basis this is said to be a claim by Trevor against James. Trevor admits 'the debt of the Vendor Finance oral agreement' relying on a conversation between him and James at the Property in or around January to March 2005, during which Trevor claims to have said words to James to the effect of, 'I only owe you $300,000'.[36]
[36] Further amended defence and counterclaim [11] - [13].
The second part of Trevor's counterclaim also appears to be a statement as to amounts owed by Trevor to James as opposed to the other way around. Trevor says that he paid approximately 56% of the purchase price of the Property of $298,000 to James and James is owed $130,000, being the balance of 44% of the purchase price.[37]
[37] Further amended defence and counterclaim [14] - [16].
The third part of Trevor's counterclaim is to the effect that if James' claims succeed, Trevor claims by way of counterclaim, either equitable ownership in proportion to his contributions, or an equitable lien and compensation for tax liabilities, rates, insurance and mortgage payments made by him together with interest and the purchase price of the home he had to buy when he was 'coerced out of his home', being $390,000.[38]
[38] Further amended defence and counterclaim [17].
By way of relief, Trevor counterclaims:
(a)an order dismissing James' claim:
(b)an order that he remains the legal and beneficial owner of the Property but that he is indebted to James in the amount of $130,000, representing the amount owed as detailed in Trevor's second counterclaim;
(c)alternatively, an order that Trevor remain the legal and beneficial owner of the Property but that he is indebted to James in the amount of $292,000 under the 'vendor finance agreement';
(d) alternatively, an order for specific performance of the 'vendor finance agreement';
(e)alternatively, an order for the Property to be sold and the proceeds to be distributed between James and Trevor with $130,000 to be paid to James and the balance to be divided between the parties in the proportion pleaded in the second counterclaim;
(f)alternatively, a declaration that the Property is held on trust in proportion to the parties' contributions; and
(g)alternatively, an order that Trevor is entitled to a lien and equitable compensation for the value of his counterclaim.

Further pleadings

I do not repeat or summarise James' reply and the defence to the further amended counterclaim or Trevor's subsequent reply.
In summary, each refer to and rely on matters to be determined by reference to conversations or other factual matters, as pleaded.

Application for leave to bring application out of time

As provided in O 16 r 1(1) RSC, an application for summary judgment must be made within 21 days after appearance or at any later time by leave of the court.
Trevor's application is made significantly out of time. He entered his appearance on 10 October 2018 and did not file the Application until over five years later, on 23 January 2024. He therefore requires and seeks the court's leave to bring the Application.
The requirement for a defendant to apply for summary judgment under O 16 r 1(1) RSC within 21 days of appearance is in the same terms as O 14 r 1 (1) RSC, which applies to an application for summary judgment by a plaintiff against a defendant. The same principals apply.
The policy behind the time requirement, and the proper approach to an application for an extension of time, was summarised by Chaney J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 11]:[39]
The policy of the rule that summary judgment applications be brought within a relatively short time frame is that such applications should be brought at an early stage of the proceeding and before unnecessary expense has been incurred. The discretion to extend the time is given for the sole purpose of enabling the court to do justice between the parties. The discretion should be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant. In order to determine that question, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time. There should be material before the court upon which it can exercise its discretion. Usually it will be incumbent on an applicant for an extension of time to provide an adequate explanation for the delay. (citations omitted)
[39] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 11] [2016] WASC 235 [4], applied by Archer J in Cologna Investments Pty Ltd (as trustee for and D Panizza Family Trust) v Caranna [2023] WASC 368 [26]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [40] - [41] (Tottle J), referring to Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450 (Heaton), 453 (Sanderson M); Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997 (Smith), 55 - 56 (Malcolm CJ, Kennedy J & Owen JJ agreeing); Barrick Gold of Australia Ltd v FL Smidth Inc [2007] WASC 186 [10] (Templeman J); Westpac Banking Corp v Anderson [2017] WASC 106 (Anderson) [38] (Pritchard J).
The court has a broad discretion to grant leave out of time, and the burden is on the applicant to show the delay is justifiable in all of the circumstances.[40]
[40] Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992) (Adams M); Smith [56], as cited by Pritchard J in Anderson [38].
Prejudice to the other party occasioned by the delay in bringing the application, is also a relevant consideration,[41] and one that James submits is significant and looms large in this case.
[41] Heaton (1997) 35 ATR 450 [453] cited by Pritchard J in Anderson [38].
Trevor is, and at the time of bringing the Application was, self‑represented. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.[42] It is also appropriate that I approach the documents in which he articulates his case with some flexibility.[43] However, I must ensure that any latitude given to Trevor does not deprive James of his right to procedural fairness and a fair hearing.[44]
[42] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 (Glew) [10].
[43] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), (543) (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[44] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] ‑ [43] (Newnes JA, with whom Pullin & Buss JJA agreed); Glew [10].
It is also relevant that, although Trevor was self‑represented when he entered his appearance on 10 October 2018 and when he filed the Application, he was legally represented from 7 January 2019 until 29 August 2023. It was during this time that the amended statement of claim was filed, on 16 August 2021. The Application was not filed until some two and a half years after, and more than five years after an appearance was entered.
James submits, in effect, that it would be unjust to allow Trevor to bring the Application at such a late stage of the proceeding. It was submitted that a significant amount of time and resources have been expended progressing the matter to trial. In the five or so years since entering his appearance and filing the Application in February 2024, Trevor has amended his defence and counterclaim three times. He has also applied, unsuccessfully, to dismiss the amended statement of claim.
James submits he will suffer prejudice if leave is granted at this late stage of the proceedings after significant resources and time have been expended progressing the action to trial. He says he has incurred significant legal costs in excess of $100,000. Trevor also made submissions to the effect that he has incurred significant legal fees.
The application is brought very late. Although there is no evidence before the court as to the quantum of the costs incurred by James (or by Trevor), I infer that over the course of the proceedings, the legal costs likely to have been incurred by both parties will be significant.
The Application follows dismissal of Trevor's application to strike out the amended statement of claim. That application was made in October 2022 while Trevor was legally represented. Although the strike out application was directed to specific paragraphs of the pleading as opposed to the whole, the effect of the orders sought was to strike out all of James' claim. The grounds relied upon included that the statement of claim, or the paragraphs referred to, did not disclose any reasonable cause of action. Trevor's application to strike out the amended statement of claim was dismissed on 13 December 2022.
Trevor has provided little if any explanation for the delay in bringing the Application. He points to delays on James' part in progressing his claim and to not being aware before filing the Application of the limitation issues he now seeks to rely upon.
In circumstances where Trevor has been legally represented for a substantial proportion of the proceedings, has previously applied, unsuccessfully, to strike out the amended statement of claim and having regard to the merits of the Application, I am not satisfied that leave ought to be granted.
I deal with the merits of the Application in the following sections of these reasons.

Principles applicable to an application for summary judgment pursuant to O 16 r 1 RSC

Order 16 r 1 RSC allows a defendant to bring an application for summary judgment for the dismissal of an action on the grounds that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings.
The legal principles relating to an application for summary judgment pursuant to O 16 r 1(1) RSC are well established. They were summarised by Pritchard J (as her Honour then was) in Gerovich v Maxwell John Gerovich as executor and trustee of the estate of Anthony Gerovich[45] and, more recently, by the Court of Appeal in Pisano v South Metropolitan Health Service,[46] as follows:
[45] Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153 [27] ‑ [32] (Pritchard J).
[46] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Buss P, Vaughan & Hall JJA) (Pisano) [52]. See also Pearson v Connor [2024] WASCA 49 [36] - [37] (Mitchell & Hall JJA, Seaward J).
[52]The general principles that apply on a defendant's application for summary judgment under O 16 r 1(1) RSC are well-established:
1.The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.
2.Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.
3.At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.
4.If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.
5.Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial. But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.
6.Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.
7.It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.
8.On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.
(citations omitted)

Overview of the parties' submissions

I need not repeat the parties' submissions. They are set out in the outlines filed, as expanded upon orally at the hearing of the Application. What follows is a summary of each party's position.

Trevor's submissions in support of the Application

Trevor submits that there is no serious question to be tried. He says that James' claim is based on what he describes as 'a fabricated story involving oral conversations' between James and Trevor that date back, in some cases, more than 20 years.
Trevor also refers to inconsistencies between what James says in his claim and his affidavit opposing the Application and a statutory declaration filed in a separate caveat proceeding.
Trevor denies the allegations said to give rise to a promissory or proprietary estoppel and says that he just tried to obey the demands made by James in what Trevor describes as threatening and abusive emails.
Trevor states, in effect, that James' claim should be summarily dismissed as it has no prospect of succeeding and is statute barred. Amongst other matters, he says that to the extent James' claim relates to a breach of the contract of sale, the limitation period of six years has long ago expired. He also refers to s 27 of the Limitation Act 2005 (WA) (2005 Limitation Act) and says that to the extent James seeks equitable relief, a limitation period of six years from accrual of the cause of action applies, which had expired before the proceeding was commenced.
Trevor also refers to James' delay in bringing his claim and progressing the proceeding, which he says is prejudicial because he is no longer able to produce evidence of emails and other documentation in defence of the claim. He also refers to the detrimental effect of the passage of time on the ability to call witnesses and, where witnesses are available, the reliability of their recollection of events and conversations.
James' submissions in opposition to the Application
James refutes Trevor's contention that his claim is statute barred and says that, in any event, no limitation defence has been pleaded by Trevor in any of the iterations of his defence.
It was submitted on behalf of James that the reference in the amended statement of claim to the agreement between James and Trevor in April 2002 is part of the relevant background to the circumstances in which the Property came to be transferred to Trevor. James' cause of action is not for breach of contract. Rather, it is submitted that his claim arises in proprietary or promissory estoppel and accrued, at the earliest, in July 2014.
James refers to s 61 of the 2005 Limitation Act, which provides, in effect, that a cause of action to enforce an equitable estate or interest in land accrues in the same manner and circumstances as and when a cause of action to recover land would accrue if the estate or interest were a legal interest. Section 19 of the 2005 Limitation Act provides for a limitation period of 12 years for an action to recover land.
In the alternative, James relies on ss 62 and 69 of the 2005 Limitation Act, which also provide for a limitation period of 12 years from when the cause of action accrues.
James relies on Shirley Elizabeth Williams and Gwyneth Margaret Fleming as administrators of the estate of Margaret Jane Congdon v Ross Gregory Congdon as administrator of the estate of Walter Edwin Congdon,[47] in which Master Sanderson stated, in effect, that an action to recover land is not confined to an action claiming possession and will include a claim pursuant to a constructive trust.[48]
[47] Shirley Elizabeth Williams and Gwyneth Margaret Fleming as administrators of the estate of Margaret Jane Congdon v Ross Gregory Congdon as administrator of the estate of Walter Edwin Congdon [2018] WASC 289 (Williams).
[48] Williams [19].
In Williams, the Master explained that a constructive trust and the right to sue under it arises when a defendant asserts full beneficial ownership of the property or denies the plaintiff's beneficial interest in it.[49] He continued that the cause of action arises at a time when the necessary facts exist, referring to Baumgartner v Baumgartner,[50] in which the High Court recognised that the refusal to acknowledge an equitable interest amounts to unconscionable conduct. The trust is imposed as a remedy to circumvent that conduct and the cause of action accrues when the unconscionability arises.
[49] Williams [24], referring to Payne v Rowe[2012] NSWSC 685 [99].
[50] Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, 147.
James contends that his cause of action accrued in 2014, at the earliest, when by his emails Trevor resiled from his promise or representation to transfer the Property to James. Alternatively, James claims an equitable interest in the Property arising from the contributions he has made to it, and seeks a declaration that Trevor holds the Property, or James' interest in the Property, on constructive trust for James.

Determination

Limitation period

The limitation periods provided for under the 2005 Limitation Act apply to causes of action that accrue on or after commencement of that Act, being 15 November 2005.[51] Subject to exceptions that are not presently relevant, where a cause of action accrued before 15 November 2005, the Limitation Act 1935 (WA) (1935 Limitation Act) applies.[52]
[51] Limitation Act 2005 (WA) ss 2 and 4.
[52] Re Rules of the Supreme Court 1971 (WA) - ex parte Gates [2018] WASC 213 (Ex parte Gates) [36] (Vaughan J). See also Wright v Lemon [1009] - [1110] (Buss P, Vaughan & Hall JJA agreeing).

In general terms, the Limitation Acts (whether the 2005 Limitation Act or the 1935 Limitation Act) provide that an action may not be brought after the expiry of a specified period of time from the date on which a cause of action accrued. In simple terms, a cause of action accrues when all the facts have occurred which give rise to a right to sue,[53] or entitle a person to obtain a remedy from a court against another person.[54]
[53] Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245 (Wilson J).
[54] Letang v Cooper [1964] 3 WLR 573; [1964] 2 All ER 929 (CA); [1965] 1 QB 232, 242 ‑ 243 (Diplock LJ).
The effect of a limitation period having run is to bar the remedy rather than the right. As observed by Vaughan J (as his Honour then was) in Re Rules of the Supreme Court 1971 (WA); ex parte Gates,[55] the Limitation Acts do not operate to extinguish a cause of action but may be pleaded by a defendant as a bar to a claim by way of defence to the remedy or relief sought.[56]
[55] Ex parte Gates [37].
[56] See also Wright v Lemon [1095], referring to The Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 405, 473 ‑ 474; The Commonwealth v Mewitt [1997] HCA 29; (1997) 191 CLR 471, 534 ‑ 535 (Gummow & Kirby JJ).
As has been submitted on behalf of James, Trevor does not plead a limitation defence as a bar to James' claim for the remedy and relief sought. In any event, limitation questions should generally be determined at trial, not summarily or on an interlocutory basis. As the High Court stated in Wardley Australia Ltd v The State of Western Australia,[57] it is 'undesirable for limitation questions [to] be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases'.
[57] Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron & McHugh JJ).
This is because questions as to when a cause of action accrues cannot be determined in a factual vacuum and will ordinarily be informed by the evidence adduced at trial.
Even if Trevor had pleaded a limitation defence, this is not the clearest of cases in which a determination can or should be made at an interlocutory stage as to whether the claims advanced are statute barred. Nor is it a clear case in which summary judgment should be granted. It cannot be said that there is no issue to be tried.

Factual matters in dispute

There is a dispute on the pleadings and the affidavits filed about matters material to James' alleged claim and whether he is entitled to the relief sought.
The principles that apply to a claim in proprietary estoppel were recently summarised by Whitby J in Wise v Wise,[58] which I refer to and gratefully adopt without repeating. As her Honour observed, the elements of a cause of action in proprietary estoppel are:[59]
(a)the plaintiff assumes the future acquisition of ownership of property;
(b)the plaintiff's assumption was induced, encouraged or acquiesced in by the defendant;
(c)the plaintiff has detrimentally relied upon his assumption; and
(d)it would now be against conscience for the defendant to be permitted to depart from the assumed state of affairs.
[58] Wise v Wise [2024] WASC 217 [59] - [61], [63], referring to Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 [6]; Currie v Currie (No 2) [2017] WASC 312 [113] ‑ [121], which were summarised and applied in Currie v Currie (No 2) [2019] WASCA 2 [89] ‑ [91].
[59] Wise v Wise [6], referring to Currie v Currie (No 2) [2017] WASC 312 [113]. See also Lee v Australian Executor Trustees Ltd as Trustee of the Estate of the Late Ronald William Lee [No 3] [2020] WASC 447 [23] (Kenneth Martin J).
Taking James' evidence at face value for the purpose of the Application, it is sufficient to establish that there are issues to be tried.
James deposes to the circumstances in which his alleged assumption that ownership of the Property would be transferred to him is said to have been induced or encouraged by Trevor, and the payments made and other steps he has taken in reliance on the assumption.[60]
[60] Affidavit of James Montgomery sworn on 10 May 2024 (James Montgomery Affidavit) [32] - [37], [40], [43] - [62]
He relies, amongst other matters, on a conversation between him and Trevor at the Property in about March 2005, in which it is alleged that Trevor said to James that he wanted James 'to take the house back'. James says that he responded by saying to Trevor that he would pay the interest and principal repayments on the Initial Mortgage and Trevor said words to the effect that he agreed. James deposes that he asked Trevor when he would transfer title to the Property to him, to which Trevor stated words to the effect that they could 'leave it up to a 6-year time period for capital gains tax purposes', and James said he 'was ok with that'.[61]
[61] James Montgomery Affidavit [32].
James claims, in effect, that:
1.Trevor's statements or representations and subsequent conduct induced, created and/or encouraged James to adopt the expectation and assumption that title to the Property would be transferred to him around six years after that conversation.
2.In reliance on the expectation and assumption, James resided (and has continued to reside) in the Property, has paid $50,000 to Trevor as well as mortgage payments, water and council rates for the Property and for repairs, maintenance and improvements to the Property.[62]
[62] James Montgomery Affidavit [36].
James deposes to various emails exchanged between him and Trevor and to requests made by James as to when Trevor would transfer the Property to him, culminating in emails from Trevor between 17 February 2014 and 4 May 2015, in which Trevor informed James, amongst other things, that he could not transfer the Property to James until Trevor had sold another property.[63]
[63] James Montgomery Affidavit [59] - [61], [65], [67], 'JM-7'.
Trevor contests James' allegations and gives a contrary account.
As submitted on James' behalf, there are a number of disputed issues of fact that arise on the pleadings and the affidavits filed by both parties, including in relation to the alleged conversations between the parties, whether the alleged statements or representations were made by Trevor and, if so, whether they were relied upon by James. These are not matters that can or should be determined summarily. They are to be determined by reference to the evidence of the witnesses and testing such evidence at trial in the usual course.
Also, although Trevor seeks to have James' claim summarily dismissed, the relief he seeks by way of counterclaim appears to acknowledge that James is entitled to receive something in respect of the contributions he has made to the Property.
Whether James is so entitled and, if so, in what amount are also questions that should be determined at trial with the benefit of hearing evidence from the parties and any other witnesses in relation to the alleged conversations and dealings between them and the contributions made by each of them to the Property.
In the circumstances, it is not appropriate in my view to enter summary judgment. The application for leave and the Application should be dismissed, and the action should proceed to trial in the ordinary way, if the matter is not otherwise resolved.
The time that has passed since the alleged conversations and dealings between the parties may affect the reliability of the evidence. However, that is not a reason the proceeding should be summarily dismissed. Both James and Trevor are still available to give evidence, and their evidence can be tested and assessed in the usual course.
Nothing in these reasons should be taken to anticipate the outcome of the proceedings. For present purposes, it is sufficient to conclude that this is not one of those very clear cases where the court should order summary judgment.

Conclusion and orders

For these reasons, the application for leave and the Application are dismissed.
I will make orders as follows and then will hear from the parties in respect of the orders to be made in relation to costs, and any further orders, if such are not agreed:
1.The defendant's application for leave to bring the Application out of time and the Application are dismissed.
2.Within 7 days of the date of these orders, the parties are to confer in relation to the costs of the Application and any further orders, and:
(a) if agreement is reached, file a memorandum of agreed orders;
(b) if agreement is not reached, each party is to file a minute of proposed orders in relation to the costs of the Application and any further orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Acting Associate to Master Russell
28 MAY 2025