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[2009] WASC 305
mixed. The Court struck out the portions of the re-amended statement of claim pleading a knowing-receipt (first limb of Barnes v Addy) claim and a contract claim as disclosing no reasonable cause of action...
The Court struck out the parts of the plaintiff's re-amended statement of claim that alleged knowing receipt (first limb of Barnes v Addy) because the New Policy proceeds arose from a new insurance contract and not from trust property transferred from the Old Policy. The Court also struck out the plaintiff's contractual claim as statute-barred under the Limitation Act 1935. However, the plaintiff's claim that the first defendant knowingly assisted McKay's alleged dishonest breach (second limb of Barnes v Addy) was not struck out because there are contested factual issues about the first defendant's knowledge and participation that must be resolved at trial. The defendants' summary judgment application was refused and the court denied leave to bring that application out of time because resolution depends on findings of fact (see [21], [27]-[30]).
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Delryk Pty Ltd (the plaintiff) sued McKay atf The Kaylin Retirement Fund and Kaye Lynette McKay (the defendants) over life-insurance arrangements involving two policies issued by Norwich Union Life Australia Ltd. The Old Policy (policy no. 7612034) was issued 7 January 1998 with McKay the life insured and Delryk the policy owner. The parties executed a Heads of Agreement (6 March 1998) that the plaintiff says required maintenance of key-man insurance and included an irrevocable authority concerning the payment of proceeds (see [8], [10]-[14]).
In October–November 1998 McKay and Mrs McKay requested Norwich to effect a transfer or replacement. On 22 October 1998 McKay purported to request transfer of ownership from Delryk to the first defendant; it was accepted for present purposes that McKay had no authority to do so (see [11]). On 25 November 1998 Norwich cancelled the Old Policy and issued a New Policy (policy no. 7613408) owned by the first defendant, and later paid proceeds to the first defendant after McKay's death on 1 March 2002 (see [12], [14]).
Delryk pleaded causes of action including breaches framed under the two limbs of Barnes v Addy (knowing receipt and knowing assistance) and a breach of contract. The defendants applied for summary judgment under Order 16 or, alternatively, for strike-out of parts of the re-amended statement of claim (see [1], [4], [15]).
Le Miere J decided: the first-limb Barnes v Addy claim (knowing receipt) discloses no reasonable cause of action and is struck out because the New Policy and its proceeds arose from a new contract and were not trust property received from the Old Policy (see [19]-[21], [28]); the contractual claim is statute-barred by the Limitation Act 1935 and is struck out ([27], [28]); but the second-limb claim (knowing assistance) raises contested factual issues about Mrs McKay's knowledge and state of mind and therefore survives the strike-out and cannot be summarily determined; summary judgment was refused and leave to bring the application out of time was denied because resolution depends on contested facts ([26], [29]-[30]).
The judge applied well-established distinctions derived from Barnes v Addy and related authority. Two main legal constructs were considered:
The first limb (knowing receipt): liability where a third party has received trust property that has been misapplied by a trustee and the recipient had knowledge of the trust and of the misapplication (see [15]-[16]). The plaintiff's pleaded case depended on the Old Policy's benefits having been transferred so that the first defendant 'received' trust property. The court examined the factual and legal nature of what occurred: Norwich cancelled the Old Policy and issued a New Policy (a new contract). The court found no legal transfer or assignment of the Old Policy's rights to the first defendant; consequently, the proceeds paid under the New Policy did not amount to receipt of trust property arising from the plaintiff's Old Policy. Because knowing receipt presupposes actual receipt of trust property, the claim could not stand (see [19]-[21], [28]).
The second limb (knowing assistance or accessory liability): liability where a third party knowingly participates in and assists the trustee's dishonest or fraudulent breach. The court relied on the High Court's statement of categories of 'knowledge' in Farah Constructions: actual knowledge, wilful blindness, reckless failure to inquire, or knowledge of circumstances that would indicate the truth to an honest and reasonable person (see [17], [22]). Delryk pleaded that Mrs McKay knew the plaintiff was beneficiary of the Old Policy, had not sought or obtained consent, and knew or should have known that signing the risk proposal would cause cancellation and replacement (see [23]). Mrs McKay filed affidavits denying such knowledge and asserting she signed trusting her husband (see [25]). Those are contested issues of fact about state of mind and knowledge. Given the cautionary summary-judgment jurisprudence in Dey and Fancourt, that summary disposal is only appropriate where there is no real question to be tried, the court concluded the second-limb claim cannot be summarily dismissed (see [6]-[7], [26], [29]-[30]).
The contract claim was straightforwardly time-barred: the alleged breach occurred in late 1998, but the writ was not issued until 28 April 2005, outside relevant limitation periods under the Limitation Act 1935; Delryk conceded the point (see [11], [12], [27]).
Finally, the defendants' summary judgment application was brought out of time (Order 16 r 1(1) requires application within 21 days of appearance, or later by leave). The court first addressed merits and then refused leave because the matter turned on contested factual issues; summary intervention was inappropriate where trial of facts was necessary (see [2], [30]).
Before this decision the two-limb distinction from Barnes v Addy and the caution towards summary judgment were well established. The court repeated settled positions:
After this decision, the immediate practical impact is confirmatory rather than doctrinally novel. Delryk v McKay illustrates application of those principles:
In short, the decision applies orthodox trust accessory liability rules to an insurance-policy fact pattern and demonstrates procedural discipline on summary judgment and limitation issues.
"The plaintiff's case based upon the first limb of Barnes v Addy cannot succeed because the defendants did not receive any trust property." ([21])
Plain English: The court says the plaintiff cannot claim the defendants 'received' trust property because the money the defendants got came from a brand new insurance policy, not from property that belonged to the plaintiff and was then given to the defendants.
"I am not satisfied that the statement of claim, insofar as it pleads a case based on the second limb of Barnes v Addy, discloses no reasonable cause of action..." ([29])
Plain English: The judge says the allegation that the defendants helped the trustee dishonestly cannot be thrown out at this stage because there are real factual disputes about whether the defendants knew what was going on.
"I refuse leave to bring the application for summary judgment out of time because the application depends on the finding of contested facts." ([30])
Plain English: The court will not allow the defendants to bring a late summary judgment request because the case depends on factual questions that need trial, so a late summary judgment would be inappropriate.
Cautionary summary-judgment principle (citing Dey and Fancourt) ([6]-[7])
Plain English: Summary judgment powers are strong but should only be used when there is clearly no real issue to be tried; if there is a real dispute, the case should go to trial.
Knowledge categories for accessory liability (citing Farah) ([17], [22])
Plain English: To hold someone liable for helping a trustee breach a fiduciary duty, you must show they actually knew, deliberately avoided knowing, recklessly failed to enquire, or were aware of signs that an honest person would recognise as indicating a problem.
This decision is triggered where:
Where the facts show only the replacement of an old policy by a new, separately issued contract and no assignment from the trustee, the first-limb knowing-receipt cause is vulnerable. Conversely, where there is evidence (or pleaded facts) that a third party had knowledge of a trustee's dishonest breach, the second-limb claim may survive even if the legal identity of the asset changed.
This decision itself applies established authority and does not purport to overturn or modify precedent. It demonstrates application of Barnes v Addy principles in the context of insurance policies and confirms that courts will carefully assess whether allegedly received property was indeed trust property for knowing-receipt claims.
Because Delryk is an intermediate decision from the Supreme Court of Western Australia, later courts considering similar fact patterns would likely follow its core holdings:
Practitioners should expect courts to test attempted summary disposal carefully where mental state and contemporaneous documents are central.
Legal character of substituted policies where overlapping representations were made: The court noted, but did not decide, whether the first defendant or McKay sought tactical advantage by requesting a transfer rather than applying for a new policy and whether that might, in other circumstances, allow equitable remedies. The judge noted no case was pleaded on that basis and therefore did not determine it ([20]). That leaves open whether a differently pleaded factual matrix (e.g., representations that Norwich treated the transaction as a transfer or evidence of de facto assignment) might sustain a knowing-receipt claim.
The fine line between conduct amounting to 'receiving' value and conduct producing fresh contractual rights: Where insurer conduct is ambiguous, subsequent factual findings about insurer intention and legal effect may alter the analysis. This decision turns on the legal conclusion that a new contract was issued and no transfer occurred. Different documentary or transactional facts could lead to a contrary conclusion.
Standard of proof and inference on wilful blindness or recklessness in accessory cases: The court applied the Farah taxonomy of knowledge categories but declined to resolve those factual questions summarily. It remains for trial to test the application of the wilful blindness or reckless failure-to-inquire concepts to a spouse/trustee who signs documents 'trusting' a husband; the precise evidentiary thresholds and inferences available will be clarified only by a contested hearing.
Interaction with equitable tracing or constructive trusts in insurance contexts: The decision does not explore whether equitable tracing or other remedial doctrines could treat proceeds of a new policy as representing misapplied trust property in different factual circumstances. That issue is not addressed here and remains a potential area for argument in appropriate cases.
Procedural approach to late summary judgment applications where delay is excusable: The judge considered delay explanations (death of a principal; document access issues) but ultimately refused leave because of contested facts. Where delay is genuine and prejudice minimal, the balance between granting leave and preserving trial rights remains a fact-sensitive exercise.
This judgment is valuable as a practical application of Barnes v Addy principles to insurance-policy replacements, and as a reminder of the judiciary's reluctance to short-circuit fact-dependent equitable claims by summary processes.
Disclaimer: This is a case-summary and analysis of the published judgment Delryk Pty Ltd v McKay atf The Kaylin Retirement Fund [2009] WASC 305. It is legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use this analysis (including any draft or checklist), get a qualified Australian lawyer to check it.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DELRYK PTY LTD -v- McKAY atf THE KAYLIN RETIREMENT FUND [2009] WASC 305
Practice and procedure - Application for summary judgment - Application to strike out paragraphs of statement of claim - Turns on own facts
Limitation Act 1935 (WA)
Leave to bring summary judgment application out of time refused
Application to strike out paragraphs of statement of claim granted
Barnes v Addy (1874) LR 9 Ch App 244
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 70 ACSR 1
1 LE MIERE J: The defendants apply for summary judgment pursuant to O 16 of the Rules of the Supreme Court 1971 or alternatively that a number of paragraphs of the re-amended statement of claim be struck out on the basis that they do not disclose a reasonable course of action, or alternatively are embarrassing and likely to delay the fair trial of the action.
2 Order 16 r 1(1) provides that an application by a defendant for summary judgment is to be brought within 21 days after appearance or at any later time by leave of the court. The writ, indorsed with a statement of claim, was filed on 28 April 2005 and an appearance entered by the defendants on 9 May 2005. Accordingly, the defendants require leave to bring the application.
3 The defendants submit that the reasons underlying the delay in bringing the application are the difficulties caused by the death of the late Ken McKay (McKay) in March 2002 and the inability of the defendants to obtain access to relevant documents. Those matters are set out in the affidavit of Kaye Lynette McKay (Mrs McKay) sworn 4 March 2009. The defendants submit that the question of leave to bring the application out of time should be considered in the context of the strength of the plaintiff's case for summary judgment. I will defer consideration of whether the defendants should have leave to bring the application until after I have considered the merits of the application.
4 The defendants apply for summary judgment, or alternatively to strike out paragraphs of the statement of claim, on the grounds that:
5 Order 16 r 1(1) provides that the court may order that judgment be entered for the defendant if satisfied 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.
6 In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Dixon J said:
The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process (91).
7 In Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Mason, Murphy, Wilson, Deane and Dawson JJ said (omitting reference to authorities):
The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried ... In our view, it is not possible to say without doubt, on the whole of the material, that there is no question to be tried concerning the payment of the deposits by the appellants. The facts which are established are inconclusive, but the respondent, as well as the appellants, was in a position to establish conclusively the payment of the deposits if that fact could be established and, given the opportunity, it did not do so. That leaves, we think, a question to be tried and, although the appellants have not succeeded in positively establishing a defence, they should not in the circumstances be debarred from defending the action (99).
8 The action concerns two life insurance policies issued by Norwich Union Life Australia Ltd (Norwich). The first policy, described by the parties as the Old Policy, is policy no 7612034 issued by Norwich on 7 January 1998. The life insured was McKay. The policy owner was the plaintiff. The second policy, described by the parties as the New Policy, is policy no 7613408 issued by Norwich on 24 November 1998. The life insured is McKay. The policy owner is the first defendant, that is, Mrs McKay as trustee for The Kaylin Retirement Fund.
9 The plaintiff pleads in the re-amended statement of claim that in or about March 1997 McKay and Rodney Carter (Carter), a director of the plaintiff, entered into an oral agreement. One of the terms of the oral agreement is said to be that the plaintiff would take out key man life insurance policies over the lives of Carter and McKay to ensure that if either one or both of them died, the proceeds of the policies could be used to discharge the business debts of the plaintiff, as well as the personal debts of McKay and Carter and the debts of their wives, all of which individuals were to be guarantors of the various business debts of the plaintiff [8(j)]. The plaintiff says that it took out the Old Policy in accordance with the March 1997 agreement [9].
10 The plaintiff says that the plaintiff, Carter, McKay, Mrs McKay and others entered into a written heads of agreement dated 6 March 1998 (the 1998 HOA) [13]. The plaintiff says that the express terms of the 1998 HOA include, in effect, that the plaintiff deliver to Norwich an irrevocable authority authorising Norwich to pay to the Accountant the sum of $1 million payable under the insurance policy taken out by the plaintiff over the life of McKay. The Accountant was to pay the sum received to creditors of the plaintiff in reduction of the debts and liabilities of the plaintiff and refund any surplus to the plaintiff [14]. The plaintiff says that the 1998 HOA, to which Mrs McKay was a party, required the maintenance of key man insurance over the life of McKay.
11 In October 1998 McKay and Mrs McKay requested Norwich to transfer the benefits from the Old Policy to a new policy to be owned by the first defendant. On 22 October 1998 McKay, purporting to act on behalf of and with the authority of the plaintiff, requested that the ownership of the Old Policy be transferred to the first defendant. For the purposes of these applications, it is accepted by the defendants that McKay had no authority to do so on behalf of the plaintiff.
12 On 25 November 1998 Norwich cancelled the Old Policy and issued the New Policy. By letter of 25 November 1998 to the first defendant, Norwich said that 'the alteration to your policy has now been completed'. The letter then gave details of the New Policy and the premium payable under it.
13 It is common ground that the result of Mr and Mrs McKay requesting the transfer of the Old Policy and Norwich issuing the New Policy was that the Old Policy was cancelled and a new policy was issued. The defendants accept for the purposes of these applications that in causing Norwich to cancel the Old Policy, McKay breached a fiduciary duty he owed to the plaintiff.
14 McKay died on 1 March 2002. On or about 21 November 2002 Norwich paid to the first defendant the proceeds payable under the New Policy.
15 The defendants submit that the re-amended statement of claim pleads causes of action based on the principles enunciated in Barnes v Addy and a cause of action for breach of contract. The Barnes v Addy principles stem from the notion that a person who has been knowingly concerned in a breach of trust, or who receives trust property transferred in breach of trust, may be personally liable to the beneficiaries of the trust. It is convenient to refer to what has become known as the two limbs of Barnes.
16 The first limb of Barnes is concerned with the liability of a person as recipient of trust property. For the recipient of trust property to be held liable for knowing receipt, the trustee must have misapplied trust property and the third party must have received trust property. At the time of receiving the trust property the third party must have known of the trust and of the misapplication of the trust property: The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 70 ACSR 1, Owen J [4748].
17 The second limb of Barnes is concerned with the liability of a person as an accessory to the trustee's breach of trust. The third party must knowingly have participated and assisted in breaches of duty by the fiduciary. Any breach of trust or fiduciary duty must be dishonest and fraudulent: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ [179].
18 The defendants submit that there can be no liability under the first limb because the defendants did not receive any trust property.
19 The plaintiff's case appears to be based on the notion that the benefit of the Old Policy, or the benefits to which the policy owner was entitled under the Old Policy, was transferred to the New Policy, or the owner of the New Policy. This appears, in part, to be based upon statements made by McKay and Norwich at the time to the effect that the benefits of the Old Policy were transferred to the New Policy or that ownership of the Old Policy was transferred from the plaintiff to the first defendant. Neither the pleadings nor the evidence are consistent with that notion. It was common ground on the hearing of these applications that the Old Policy was cancelled and the first defendant took out the New Policy, which was a new policy issued by Norwich.
20 McKay was a tetraplegic following a diving accident in 1990 and was confined to a wheelchair. In his affidavit sworn 20 May 2009 Carter deposes that the Old Policy took many months to arrange due to the medical reports required as a result of McKay's previous medical history [12]. In the course of the hearing of these applications, there was discussion about the relevance of these matters. There was discussion about whether the request by McKay and Mrs McKay to transfer the Old Policy to the first defendant rather than for the first defendant to take out a new policy enabled the first defendant to take advantage of the issue and existence of the Old Policy. However, no case based upon such considerations is pleaded and the plaintiff did not advance a case based upon such considerations.
21 The plaintiff's case based upon the first limb of Barnes v Addy cannot succeed because the defendants did not receive any trust property. The proceeds of the New Policy were received under the contract of insurance taken out by the first defendant. The proceeds did not result from the Old Policy. The Old Policy was not, as a matter of law, transferred to the first defendant. The defendants accepted for the purposes of this application that McKay breached his fiduciary duty to the plaintiff by cancelling the Old Policy. However, there was no breach of duty in taking out the New Policy. McKay was at liberty to take out, or cause to be taken out, a policy of insurance on his life in addition to the Old Policy. There was no conflict of interest in McKay taking out an additional policy of life insurance. Indeed McKay had earlier taken out another life insurance policy with Westpac. The plaintiff did not suggest that McKay committed any breach of fiduciary duty in doing so. If McKay had assigned the Old Policy to the first defendant or caused it to be assigned to the first defendant that would have been a breach of fiduciary duty owed to the plaintiff. But that did not happen. McKay did not breach a fiduciary duty owed to the plaintiff by taking out, or causing to be taken out, the New Policy. The New Policy, or the proceeds of it, did not become trust property.
22 Counsel for the defendants submitted that the plaintiff's claim under the second limb could not succeed because Mrs McKay did not have knowledge of any dishonest or fraudulent breach of fiduciary duty by McKay. Knowledge in the second limb of Barnes v Addy includes:
(iii) wilfully and recklessly failing to make such enquiries as an honest and reasonable man would make; or
(iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man: Farah Constructions Pty Ltd v Say-Dee Pty Ltd, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ [171] - [178].
23 The plaintiff pleads in the re-amended statement of claim that the first defendant received the proceeds of the New Policy knowing that she had no entitlement to the proceeds in that:
(a) she knew that the plaintiff was the beneficiary of the Old Policy;
(b) she had never sought or received from the plaintiff its authority, permission or consent to cancel the Old Policy, replace it with the New Policy and receive the policy proceeds; and
(c) at the time she signed the risk proposal form for the New Policy, the first defendant knew or should have known that the result of her request to the insurer would be the cancellation of the Old Policy and its replacement by the New Policy [21].
24 The defendants submit that the evidence establishes that the first defendant did not know that the plaintiff was the beneficiary of the Old Policy. The defendants submit that the sole evidence that Mrs McKay knew that the plaintiff was entitled to the proceeds under the Old Policy or that the plaintiff's consent to the transfer of that policy was required is that she executed the 1998 HOA.
25 In her affidavit sworn 20 July 2009 in support of the defendants' application for summary judgment, Mrs McKay swears that she was not involved in the preparation of the 1998 HOA, cannot recall ever reading the 1998 HOA prior to the commencement of this action [11] and does not recall reading it before she signed it. Mrs McKay swears that she would have signed the 1998 HOA simply because her husband asked her to do so as she trusted him [12]. Mrs McKay swears that she signed a risk proposal form for the New Policy because she was told by her husband words to the effect to sign the document to provide life insurance covering his life for the benefit of the first defendant. She says she made no further enquiry about the risk proposal because she trusted her husband [15]. Mrs McKay swears that she did not know, or believe, that consent of the plaintiff was required for the risk proposal form [16]. Mrs McKay says that she was unaware that the plaintiff was the beneficiary of the Old Policy [18] and she did not know that by signing the risk proposal form that Norwich would cancel the Old Policy and issue a new policy in its place [20] and she did not know or believe that she had caused the Old Policy to be cancelled [21].
26 The defendants submit, in effect, that the plaintiff cannot establish that Mrs McKay was knowingly involved in McKay's breach of fiduciary duty in causing the Old Policy to be cancelled because of her affidavit evidence to which I have referred. That is not a sufficient ground for summarily dismissing the plaintiff's claim. The power to order summary judgment should never be exercised unless it is clear that there is no real question to be tried. It is not possible to say without doubt that there is no question to be tried concerning Mrs McKay's knowledge that the plaintiff was the owner of the Old Policy and, by requesting Norwich to cancel the Old Policy, she knowingly participated in a dishonest breach of fiduciary duty by McKay.
27 The alleged breach of contract caused Norwich to cancel the Old Policy and issue the New Policy. That occurred on 22 October 1998 or at the latest 24 November 1998. The writ did not issue until 28 April 2005. The plaintiff concedes that by then the plaintiff's claim for breach of contract was barred by the Limitation Act 1935.
28 Insofar as the re-amended statement of claim pleads a claim based upon the first limb of Barnes v Addy, it discloses no reasonable cause of action and should be struck out. Insofar as the statement of claim pleads a claim for damages for breach of contract, it discloses no reasonable cause of action and should be struck out.
29 I am not satisfied that the statement of claim, insofar as it pleads a case based on the second limb of Barnes v Addy, discloses no reasonable cause of action or is embarrassing or likely to delay the fair trial of the action. I am not satisfied that the plaintiff's claim, insofar as it is based upon the second limb of Barnes v Addy, is frivolous or vexatious or that the defendants have a good defence on the merits or that the action should be disposed of summarily.
30 The action is not frivolous or vexatious and I am not satisfied the defendants have a good defence on the merits or that the action should be disposed of summarily. The defendants' defence to the claim based on the second limb of Barnes v Addy depends on findings of fact. The contentious facts concern Mrs McKay's knowledge of the contents of, and obligations created by, the 1998 HOA and more broadly her knowledge of the allegedly dishonest or fraudulent act of McKay in causing the Old Policy to be cancelled and the New Policy to issue in breach of his fiduciary duty owed to the plaintiff. I refuse leave to bring the application for summary judgment out of time because the application depends on the finding of contested facts.
31 I will hear the parties as to which paragraphs of the statement of claim should be struck out so as to give effect to these reasons.
Barnes
Addy
(1949) 78 CLR 62
(1983) 154 CLR 87
(2007) 230 CLR 89
The Court struck out the portions of the re-amended statement of claim pleading a knowing-receipt (first limb of Barnes v Addy) claim and a contract claim as disclosing no reasonable cause of action (see [28]). The Court refused to strike out the second-limb (knowing assistance) claim and refused summary judgment and refused leave to bring the summary judgment application out of time because contested factual issues remain (see [29]-[30]). The Court ordered further directions as to which paragraphs should be struck out (see [31]).