JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SMITH (a pseudonym) -v- JONES (a pseudonym) [2025] WADC 22
CORAM: REGISTRAR NAIRN
HEARD: 6 FEBRUARY 2025
DELIVERED : 9 APRIL 2025
FILE NO/S: CIV 761 of 2024
BETWEEN: JASON SMITH (a pseudonym)
Plaintiff
AND
EMMA JONES (a pseudonym)
First Defendant
JANE JONES (a pseudonym)
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment pursuant to O 16 r 1 Rules of the Supreme Court 1971 (WA) (RSC) - Strike-out application pursuant to O 20 r 19(1) RSC - Pleading claims involving fraud - Application for extension of a limitation period pursuant to s 38 Limitation Act 2005 (WA) - Turns on its own facts
Legislation:
Limitation Act 2005 (WA), s 38
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19(1)
Result:
The second defendant is granted summary judgment against the plaintiff
The first defendant is granted summary judgment in respect of the plaintiff's contractual claim only
The statement of claim be struck out in its entirety, with limited leave to replead
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Ms A G Barcock |
| Second Defendant | : | Ms A G Barcock |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | Oswald Legal |
| Second Defendant | : | Oswald Legal |
Case(s) referred to in decision(s):
Allianz Australia Insurance Limited v Yu [2024] NSWSC 31
Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88
G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 4) [2021] NSWSC 1052
Girgis v Poliwka [No 6] [2019] WASC 230
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 3] [2021] WASC 260
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Latchman v Maybo Limited [2023] WADC 17
Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166
McGavin v McGavin [2024] WASC 408
Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221
Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2024] WASCA 123
Neil James Duckworth as trustee for The Ocean Farm Trust v Water Corporation [2024] WASC 90
Pisano v South Metropolitan Health Service [2023] WASCA 80
Trackem Pty Ltd (ACN 168 532 269) v Revenue Partners (A Partnership) [2021] WASC 245
Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214
REGISTRAR NAIRN:
Consistent with orders made in the proceedings on 1 April 2025, the parties' names in these reasons are pseudonyms.
For clarity and ease of reference, I shall refer to the parties by their first names.
Jason (the plaintiff) and Emma (the first defendant) were previously married, and had children together.
Jane (the second defendant) is Emma's mother, and Jason's former mother-in-law.
A settlement agreement between at least Jason and Emma was reached in or about 2015 in the context of a family court dispute.
In this court, Jason sues…
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- AGLC
- Smith (a pseudonym) v Jones (a pseudonym) [2025] WADC 22
- Case
- [2025] WADC 22
- Decision Date
CaseChat Overview and Summary
The court found that Smith's claim was indeed legally untenable because it was brought outside the limitation period. The court noted that the alleged breaches by the defendants occurred in 2015, and Smith did not initiate proceedings until 2024. The court held that the limitation period had expired, and Smith had not provided a valid reason for an extension of that period. The court also considered the established legal principles concerning the strike-out of pleadings under O 20 r 19(1) of the RSC and found that Smith's claim did not disclose a reasonable course of action. The court concluded that the application for summary judgment should be granted, dismissing Smith's contractual claim. The court further found that the claim did not qualify as a "continuing breach" that would extend the limitation period, as the alleged breaches were "once and for all" obligations that should have been fulfilled by the end of 2015.
The court granted summary judgment dismissing Smith's contractual claim and struck out the claim pursuant to O 20 r 19(1) of the RSC. The court ordered that Smith take no further steps in relation to the claim, and the defendants were awarded costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I also accept that summary judgment based on the expiration of a limitation period is only to be granted in the clearest of cases.[32] [32] Neil James Duckworth as trustee for The Ocean Farm Trust v Water Corporation [2024] WASC 90 [33] (Howard J). I also note that it is open to me to grant summary judgment of part of a claim in an appropriate case.[33] The relevant legal principles informing a strike-out application under O 20 r 19(1) of the RSC are well established. As will be seen from what follows, most pertinent here is O 20 r 19(1)(a), concerning whether a pleading discloses a reasonable course of action, on which the decision of Lee v Lawfirst Pty Ltd [No 2] offers specific guidance.[34] [34] Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166 [80] - [82]. I have identified above that Jason advances alternative claims. I shall address the legal defensibility of each in turn. Dealing first with Jason's primary contractual claim, for reasons that follow below, I have found that summary judgment ought to be granted dismissing that claim. As will be seen below, I was able to make that finding by reference to a single ground, namely that Jason's writ was issued outside of the limitation period applicable to Jason's contractual claim, and Jason has not made out a case justifying an extension of that period under s 38 of the Limitation Act. The contractual claim is therefore legally untenable. Jason did not commence these proceedings before the limitation period applicable to his contractual claim expired. The reasons for this are as follows:1.The settlement agreement upon which Jason's contractual claim is based was entered at some point in 2015. 2.The essence of Jason's complaint against Emma and Jane is that they dishonoured that settlement agreement. 3.In the case of Emma, this dishonouring occurred as early as about mid‑2015, since Jason makes it clear that Services Australia was continuing to pursue him and made a prohibition order against him on 6 July 2015. On Jason's case, this was a result of Emma reneging on her commitment to advise Services Australia that she had agreed to accept the superannuation rollover in lieu of child support. 4.In the case of Jane, Jason says she was obliged to take steps to lift or withdraw the default judgment. If that was her obligation, it was an obligation that would have been due to be performed within a reasonable period after the settlement agreement was reached. Plainly it would have been breached by the end of 2015 (if not before). 5.Therefore, and accepting for present purposes that Jason is correct and that Emma and Jane breached the settlement agreement in the manner he alleges, those breaches have occurred at some point in 2015. 6.Jason did not commence these proceedings until 12 February 2024. 7.This is well outside the applicable limitation period. In particular, Jason had six years from the date of breach to bring his contractual claim.[35] 8.I do not consider that Jason's claims against Emma and Jane are claims of 'continuing breach' such that the commencement of the applicable limitation period is pushed out beyond 2015. Rather the breaches alleged are breaches of 'once and for all' obligations. On Jason's case, both Emma and Jane had a reasonable period of time to act in accordance with the settlement agreement, and this would have expired by the end of 2015.