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[2003] VSC 71
plaintiff. Defendant's summons to strike out the statement of claim dismissed; statement of claim not struck out; costs reserved (counsel to make submissions) ([59], [62]).
The defendant applied to strike out the plaintiff's claim that he has a life interest in land. The Court held that summary dismissal is a drastic remedy to be used sparingly and refused to strike out the claim because there remained a real question whether the equitable doctrine of part performance could apply to take the agreement out of the Statute of Frauds. Conflicting affidavit evidence and absence of a written memorandum did not justify dismissal at this stage. The defendant's summons was dismissed and costs were reserved.
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1,924 words · generated 10/07/2026
This was an interlocutory strike-out application in the Supreme Court of Victoria (Practice Court). The plaintiff, Martin Elsegood, filed a writ on 3 July 2002 seeking declarations that he has an estate or interest in land known as Sterling Park (described in two certificates of title), that he could register a caveat pursuant to s 89(1) of the Transfer of Land Act 1958 (Vic), and an injunction restraining the defendant, Sharon Gotts, from removing him from the land ([2]). The defendant filed a defence on 2 August 2002 and, on 1 November 2002, filed a summons under Order 23, Rule 23.01(1) seeking to strike out the plaintiff's statement of claim on the ground it did not disclose a cause of action ([5], [11]).
5 cited instruments linked from this judgment.
Beach J had earlier given leave for the application to be brought before a Judge rather than a Master ([5]). At the hearing the Registrar of Titles, joined as a third party, informed the defendant’s solicitors that she did not intend to appear ([8]). Counsel for the defendant principally argued that the plaintiff’s claim was barred by the Statute of Frauds, as enacted by s 126 of the Instruments Act 1958 (Vic), because no memorandum or note in writing meeting the statutory requirements had been produced; accordingly the statement of claim disclosed no cause of action and should be struck out ([41], [47]). The plaintiff claimed a life interest said to be evidenced partly in writing, partly orally, and partly to be inferred, the written component being a contract of sale with the defendant’s ex-husband George Eccles, but that contract was not before the Court ([38]).
Balmford J reviewed the applicable summary dismissal principles and authorities, considered the statutory requirements, and examined the affidavit evidence. She found there were substantial conflicts in the affidavits, but concluded that the plaintiff might have grounds to rely on the equitable doctrine of part performance to remove the transaction from the Statute of Frauds. On that basis she held it was not appropriate to strike out the statement of claim. The defendant’s summons was dismissed and costs were reserved ([56], [59], [62]).
Two strands of reasoning drive the decision.
First, the general principle governing summary dismissal: strike-out powers are exceptional and should be exercised sparingly. Balmford J adopted the established high threshold, a claim should only be summarily dismissed where it is so plainly untenable that it cannot succeed, or where it is manifestly groundless or an abuse of process ([22]). She cited the authorities assembled in McKellar v Container Terminal Management Services and the High Court authorities discussed therein, and emphasised that the court must take great care to avoid depriving a plaintiff of a trial unless the materials allow a definite and certain conclusion of unarguability ([22]). In short, the court must be satisfied that there is no real question to be tried.
Second, the court applied statutory and equitable principles relevant to contracts concerning land. Section 126 Instruments Act 1958 (Vic) (the Statute of Frauds provision) requires a written memorandum signed by the person to be charged containing the essential terms of the agreement ([41]). No such memorandum was produced. However Balmford J recognised that the equitable doctrine of part performance, preserved by s 55(d) of the Property Law Act 1958 (Vic), can take a transaction out of the Statute of Frauds where acts have been done plainly referable to the alleged contract, and that the affidavit material before the court disclosed matters which, if established, could give rise to part performance ([55], [56]).
Given these two considerations, Balmford J concluded that the requisite clarity to justify summary dismissal was absent. The factual and equitable disputes, and the possibility that part performance could save the plaintiff’s claim, meant a full trial (or more comprehensive interlocutory resolution) was necessary. Consequently, the strike-out application failed ([56], [59]).
Before this judgment the governing principles for summary dismissal and the interaction of the Statute of Frauds and part performance were well established in higher authorities. Balmford J relied on McKellar (FCA), and the High Court authorities cited within it, to restate the correct approach to strike-out applications: sparing and cautious, requiring demonstrable lack of any real question to be tried ([22]).
On the substantive point, the doctrine of part performance as an equitable exception to strict writing requirements has long been recognised (see the reference to Cooney v Burns and preservation by s 55(d) PLA). Elsegood v Gotts does not alter the law; it applies these settled principles at the interlocutory stage. The decision reinforces that absence of a written memorandum is not necessarily fatal on a strike-out application where the plaintiff's affidavits may, if believed, support part performance. Practitioners should take from this that the court will not determine on a summary strike-out whether the facts suffice for part performance where there is genuine factual conflict and a real question remains to be tried.
After Elsegood v Gotts the law remains that the availability of part performance can preclude summary dismissal even when no signed memorandum exists, provided the material before the court could, if accepted, establish acts referable to the contract. The judgment is a practical application of the cautious approach to summary disposition in the property context.
Passage (para 22): Balmford J reproduces and relies upon the high-level summary dismissal test drawn from McKellar and preceding authorities. Plain English: "You should only throw out a case before trial if it is blatantly hopeless; if there is any real legal or factual issue that could be decided for the plaintiff, the case should go to trial."
Passage (para 41): Text of s 126 Instruments Act and the Parker v Barnett principle that the memorandum must contain parties, promise, subject matter and consideration. Plain English: "If you want to sue on a contract that deals with land, you generally need a signed written note setting out who is involved, what was promised, what property is involved and what consideration was given."
Passage (para 56): "There are substantial conflicts... however... there may well be grounds on which the plaintiff could rely on the equitable doctrine of part performance... I say no more than that..." Plain English: "Although the affidavits do not agree, even taking those disagreements into account, the plaintiff has presented enough to suggest he might prove acts that show he was relying on the agreement; that could allow him to get around the writing requirement. I will not decide that now."
Passage (para 59): "I am satisfied that it is not appropriate that I make the order sought by the defendant to strike out the statement of claim." Plain English: "I will not throw out the plaintiff's case at this stage."
Passage (para 62): "The summons will be dismissed. Counsel may wish to make submissions as to costs." Plain English: "The defendant's application fails; the next step is submissions about who pays costs."
Elsegood v Gotts is applicable where:
Practically, the judgment signals that where part performance is argued on affidavit material that, if proved, could satisfy the doctrine, a strike-out application will usually fail. It is only where the pleaded case is manifestly untenable, or where the affidavit material cannot, as a matter of law, found a claim of part performance, that a summary dismissal is appropriate.
Elsegood v Gotts is a district-level interlocutory decision applying well-established High Court and Federal Court principles. It is an instance of the orthodox approach and does not attempt to refine or expand the law. Later decisions considering strike-out applications in the context of alleged land agreements and part performance are likely to cite the same High Court authorities and will treat Elsegood as supportive authority for refusing to strike out claims where part performance is plausibly arguable on the material. The judgment is useful for practitioners as a concrete example of the application of the summary dismissal test to equitable defences to s 126 objections.
When relying on Elsegood in later litigation, courts will treat it as persuasive precedent at the Victorian Supreme Court level: a reminder that factual conflicts and potentially dispositive equitable issues should generally be left for trial unless the claim is plain nonsense.
Strength of affidavit material required to raise part performance at strike-out stage. Balmford J held there "may well be grounds" for part performance on the affidavits before her ([56]). She did not specify the minimum quantum or quality of acts required at an interlocutory stage. That remains a matter for case-by-case assessment: how detailed must the affidavit evidence be to avoid a strike-out? This decision demonstrates possibility rather than a quantified threshold.
Role of documentary evidence not before the court. The judge noted the contract said to provide the written component was not before the Court and declined to comment ([38]). That raises the procedural question: when a written agreement exists but is not pleaded or produced, what procedural steps should a defendant take to insist on production before resisting the matter proceeding to trial? The judgment does not resolve tactical or procedural sequencing.
Degree to which s 55(d) Property Law Act preserves equitable intervention. Balmford J relied on s 55(d) to note the doctrine survives statutory writing requirements ([55], [56]). How Victorian courts will treat borderline cases where the alleged acts are only minimally referable to the contract remains unresolved.
The interaction of strike-out procedures and counterclaims. Balmford J observed that several heads of relief in the defendant’s summons were more appropriately the subject of a counterclaim and therefore not determined ([5], [59]). The decision does not resolve when it is permissible or efficient to bundle defensive relief in a strike-out application rather than plead a counterclaim; practitioners should note the court's preference for proper pleading.
The decision leaves open evidentiary questions about what acts constitute sufficient part performance at trial. Since Balmford J declined to resolve those questions on the strike-out material, the precise boundary between acts that are referable to an alleged contract and acts that are merely preparatory remains to be determined on fuller evidence.
Conclusion: Elsegood v Gotts is an application of orthodox principles: the high threshold for summary dismissal; the continued availability of part performance as an equitable escape from writing-formalities; and the insistence that factual conflicts and equitable questions generally be resolved at trial rather than on a strike-out application. For practitioners, the judgment is a useful reminder to assemble clear affidavit material on part performance if a land-interest claim is to survive interlocutory attack, and that courts will be cautious before depriving a plaintiff of trial where equitable defences are plausibly arguable.
[2003] VSC 71
PRACTICE AND PROCEDURE- whether statement of claim discloses cause of action - whether summary dismissal justified - equitable doctrine of part performance - life interest in land.
McKellar v Container Terminal Management Services [1999] FCA 1101
Parker v Barnett (1889) 16 VLR 214
23.01(1) Where a proceeding generally or any claim in a proceeding--
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
It is clearly established that the jurisdiction of the Court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.
In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Dixon J (as he then was) stated at 91:
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.
In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Barwick CJ cited that passage with approval at 129-30, and stated earlier at 128-9:
The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".
" . . . in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
The remarks of Dixon J in Dey v Victorian Railways Commissioners were also cited with approval by Mason CJ, Deane and Dawson JJ in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 where their Honours said at 602:
The power to order summary judgment must be exercised with "exceptional caution" . . . and "should never be exercised unless it is clear that there is no real question to be tried".
The same strict approach has been taken in the United Kingdom. In Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 Lord Templeman stated at 435-6:
"My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself."
Other United Kingdom authorities are canvassed by O'Loughlin J in Cubillo v Commonwealth of Australia [1999] FCA 518; (1999) 163 ALR 395 at 415-6. They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court. . . .
An action must not be brought to charge a person upon a special promise to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.
The memorandum or note in writing must contain all the terms of the contract including the parties, the promise, the subject matter and the consideration. Parker v Barnett (1889) 16 VLR 214 at 221.
(1) Subject to the provisions hereinafter contained with respect to the creation of interest in land by parol -
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorized in writing, or by will, or by operation of law;
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorized in writing or by will.
(2) This section shall not affect the creation or operation of resulting, implied or constructive trusts.
[1] [1999] FCA 1101 at [12]- [18]
[2] see Cooney v Burns [1922] HCA 8; (1922) 30 CLR 216 at 222
Elsegood
Gotts [2003] VSC 71
(1949) 78 CLR 62
(1964) 112 CLR 125
(1993) 177 CLR 598
(1999) 163 ALR 395
(1922) 30 CLR 216
Defendant's summons to strike out the statement of claim dismissed; statement of claim not struck out; costs reserved (counsel to make submissions) ([59], [62]).