Case: Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60
Outcome: cited
Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124] . 6 Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. . 30 The respondents contend however that, whatever be the position in relation to the Contract to Lease, none of this extrinsic material is even arguably relevant to the construction of the option in the Lease itself which they say is clear in its terms and was drawn by the applicants' solicitors. I do not consider that this necessarily follows. The context, background or history to the Contract to Lease may arguably, in my view, also be relevant to a consideration of what is intended by the option in the Lease. The Contract for Lease, as I observed earlier, by clause 23 contemplated that any Lease would contain the terms of the offer in the Contract to Lease. Both are inter-related in this sense. There was no evidence as to what instructions were given by the applicants to their solicitors for the preparation of the Lease. It is reasonable to infer however that they were provided with the Contract to Lease: Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 at [132] per Gordon J. It is hardly surprising then that any ambiguity, absurdity or shortcoming in the Contract to Lease, could be repeated in the Lease. Additionally, in respect to the Lease, relevant extrinsic evidence would arguably also include a consideration of the conversations which, on the applicants' case, took place on 3 April 2006, concerning payment of rates and taxes as well as the content of the settlement statements sent to Mr Reynolds on 3 and 4 April 2006.