The decision of the Queensland Supreme Court in JNJ Resources Pty Ltd v Crouch v Lyndon  QSC 13 demonstrates the reluctance of the judiciary to make summary orders dismissing a claim on the basis that it is statute barred except in the ‘clearest of cases’ as per the decision in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
The plaintiff commenced proceedings against the defendant alleging it had provided negligent advice regarding simultaneous contracts to purchase land executed between the directors of the plaintiff and an adjoining land owner (the vendor). The second of these contracts was terminated by the vendor in November 2009. The plaintiff claimed damages for direct loss as well as loss of opportunity.
The defendant alleged that the cause of action, if any, accrued no later than 27 January 2006 when the first contract settled and therefore the time limit for commencement of proceedings expired on 27 January 2012. The plaintiff alleged that its cause of action accrued at the earliest when the second contract came to an end in November 2009.
The Court concluded that it would be inappropriate to reach any legal conclusion on the point as it depended on a factual conclusion of the evidence as to when the cause of action arose and the Court considered that none of these issues had been adequately addressed in the parties’ evidence or arguments.
In respect of the loss of opportunity claim, the Court noted that there remained a question as to whether or not the plaintiff had suffered any actual loss and concluded that the plaintiff would be required to prove past or present loss or damage in order to succeed in the proceeding. As neither of the parties had joined this question as part of the application, the Court concluded it could not consider this point further and therefore could not make a determination.
The Court relied on the principal in Wardley that limitation questions should only be decided in interlocutory proceedings in the ‘clearest of cases’ otherwise they should be left to the hearing of the action. On this basis, the application for summary judgment was dismissed.
This decision is a timely reminder that a defendant wishing to apply for summary judgment must ensure that it has its house in order before proceeding with an application. If there is any doubt, the Court is likely to throw it out.