Plaintiff v Defendant

1 By summons filed 7 August 2025, the Defendant brought an application to strike out the whole or part of the Plaintiff's amended statement of claim and/or an application for summary judgment on parts of the Plaintiff's amended statement of claim. The relief sought was as follows:

(a) The Plaintiff's amended statement of claim filed 28 March 2025 be struck out pursuant to rule 23.02(a) and/or (c) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules').[1]

(b) Alternatively to order 1, paragraphs 8 and 10 of the amended statement of claim be struck out pursuant to rule 23.02(a) and/or (c) of the Rules.

(c) Further or alternatively to orders 1 or 2, the Court give summary judgment on the parts of the Plaintiff's claim set out in paragraph 10(a), (b), (c) of the amended statement of claim pursuant to section 63(1) of the Civil Procedure Act 2010 (Vic).

(d) Within 28 days of these orders, the Plaintiff is to serve on the Defendant a proposed further amended statement of claim, seeking to replead the allegations currently set out in the amended statement of claim at paragraphs 8 and 10.

(e) Within 14 days of being served with the proposed further amended statement of claim, the Defendant is to inform the Plaintiff whether it consents to the filing of that pleading.

(f) Within 14 days of being informed of the Defendant's position, the Plaintiff is to file and serve an application for leave to file the proposed further amended statement of claim, along with any submissions in support of the grant of leave.

(g) The Plaintiff pay the Defendant's costs of and incidental to the summons.

(h) Any other order as the Court sees fit.

2 On 5 September 2014, the Defendant purchased from the Plaintiff by a contract of sale a former golf course in Melbourne's south east ('Sale Contract'). The substantive proceeding concerns the adequacy of the Defendant's attempts between 2014 to 2022 to procure rezoning of the golf course and the contractual obligations which arise as a consequence of the Defendant's actions or inaction.

3 The terms of the Sale Contract provided, inter alia, for:

(a) $20 million as a 'deposit' on the Day of Sale;[2]

(b) an 'interim payment' of $70 million due at settlement;

(c) a 'final payment' of $25 million to be paid by the Defendant three years after the land is approved for rezoning into residential land, save that there would be no final payment if the rezoning had not occurred within eight years of the Day of Sale (with 5 September 2022 being a specified 'Sunset Date'); and

(d) that the Defendant must use its best endeavours to procure the rezoning of the land as soon as practicable after the Day of Sale until the Sunset Date.

4 The Sale Contract has been amended three times. However, for the purpose of this pleadings dispute, these changes are of no consequence. The pleaded cause of action is for breach of contract.

5 The property was not rezoned by the Sunset Date. The Plaintiff submits that it has lost the benefit of the final payment as a result of the Defendant's failure to use its best endeavours to procure the rezoning, including by their significant delay in preparing and providing the relevant documents to planning authorities, failing to address the anticipated foreseeable objections, and failing to advocate for approval from the Planning Minister.

6 Between 2014 to 2022, the Defendant stood to benefit from the rezoning, which would significantly increase the value of the land by enabling subdivision and development. The Plaintiff alleges that the Defendant did not take adequate action over that eight year period to procure rezoning, in breach of a contractual best endeavours obligation.

8 The Defendant relies upon the affidavit of John Hugh Paynter sworn 7 August 2025 which sets out the Defendant's intention to rely on a limitations defence under section 5(1) of the Limitation of Actions Act 1958 (Vic).

9 Central to the dispute is Additional Special Condition 10.1 of the Sale Contract referred to as the best endeavours obligation. That clause provides:

The Purchaser must use its best endeavours to procure the Rezoning to occur as soon as practicable after the Day of Sale.

10 'Rezoning' is defined in Additional Special Condition 1.1 as:

Rezoning means approval for the rezoning of the Land to General Residential Zone, incorporation of a Development Plan Overlay and development of the Land and which also includes publishing in the Victorian Government Gazette of the approval of the rezoning of that part of the Land under the Kingston Planning Scheme, pursuant to section 96A of the Planning and Environment Act 1987.

11 The payment sunset clause in Additional Special Condition 4.1 says:

The parties agree that the Balance of the Price shall be paid as follows:

(a) $70,000,000.00 (Interim Payment) on the Settlement Date; and

(b) $25,000,000.00 (Final Payment) on the date (Final Payment Date) that is ... 3 years after the Rezoning occurs. For the purposes of clarification, the parties acknowledge and agree that there will be no Final Payment if the Rezoning has not occurred within 8 years after the Day of Sale.

12 Additional Special Condition 10.5 clarified that Rezoning was 'entirely at the risk of the Purchaser' and the Sale Contract was not subject to the Rezoning occurring:

The Purchaser acknowledges and agrees that, notwithstanding any other provision in this Contract:

(a) the Rezoning is entirely at the risk of the Purchaser; and

(b) this Contract (with the exception of the Purchaser's obligation to make the Final Payment) is not subject to the Rezoning occurring.

13 Order 13 of the Rules sets out the basic pleading requirements. Every pleading must plead all material facts on which a party relies. Material facts do not require providing all of the circumstances but rather those which must be pleaded to establish the essential elements of the causes of action.[3]

14 Rule 23.02 of the Rules governs the striking out of pleadings. The Court may order that the whole or part of an indorsement of claim or pleading be struck out or amended, if the indorsement or writ does not disclose a cause of action or defence or may prejudice, embarrass or delay the fair trial of the proceeding.

15 The principles applicable to the sufficiency of pleadings and strike out applications are well established.[4] The function of a pleading in a civil proceeding is to alert the other party to the case they need to meet, and thus the basic requirements of procedural fairness. Pleadings also play an important case management function both during the interlocutory stages and ultimately at trial. It is important to define the issues at an early stage of a proceeding so that the just, efficient, timely, and cost‑effective resolution of the real issues in dispute can be facilitated consistent with section 7 of the Civil Procedure Act 2010 (Vic).

16 It is open to the Court to exercise its discretion under rule 23.02 of the Rules to strike out a pleading where the pleading is vague or ambiguous. Such a pleading may prejudice, embarrass or delay the fair trial. It will not be sufficient to simply plead a conclusion from understated facts and such a pleading will be embarrassing.[5]

17 Given the discretionary nature of the power to strike out pleadings, the Court ought not strike out pleadings only because of technical objections but should consider the pleading as a whole and ask itself whether the case alleged gives clear notice of the case to be met at trial.[6]

18 Summary judgment, including for part of a claim, is governed by sections 62-64 of the Civil Procedure Act 2010 (Vic):

(a) Section 62 permits a defendant in a civil proceeding to apply for summary judgment on the ground that the plaintiff's claim has no real prospect of success.

(b) Section 63(1) provides that, subject to section 64, the Court may give summary judgment in any civil proceeding if satisfied that a claim or part of the claim has no real prospect of success.

(c) Section 64 endows the Court with a discretion to allow a civil proceeding to proceed to trial if the Court is satisfied summary disposition is not in the interests of justice, or the dispute is of such a nature that only a full hearing on the merits is appropriate.

19 The general principles that apply to summary judgment are well established.[7] They are summarised as follows:

(a) the test for summary judgment is whether the respondent to the application has a 'real' as opposed to a 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail' test put forward in General Steel Industries Inc v Commissioner for Railways (NSW) ('General Steel');[8]

(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test put forward in General Steel; and

(d) the power of summary dismissal is to be exercised with caution unless it is clear that there is no real question to be tried (that is, a question which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding).

20 Summary judgment will be more readily ordered where the issue is purely a question of law rather than one of disputed fact.[9]

21 Even once the Court has determined the parties' claim has no real prospect of success, there is still the residual discretion in section 64 of the Civil Procedure Act 2010 (Vic) whereby the Court may allow a matter with no real prospect of success to go to trial if it is satisfied that it is not in the interests of justice to summarily dispose of the proceeding, or that the dispute is such that a full hearing on the merits is appropriate. The discretion must be exercised having regard to the particular case and to facilitate the just, efficient, timely, and cost‑effective resolution of the real issues in dispute.

23 The Defendant contends that the Plaintiff's pleading fails to identify in any detail what the Defendant ought to have done, but did not do. Instead, the Plaintiff has pleaded mere conclusions of breach, unsupported by necessary material facts. The Defendant asserts that this central defect requires the pleading to be struck out.

24 Moreover, the Plaintiff's pleading fails to identify when the Defendant had breached its obligations but then claim the breach to have occurred more than six years before this proceeding was commenced. Such allegations are statute‑barred and, for that reason, the Defendant seeks summary judgment on the parts of the proceeding set out in the amended statement of claim at paragraph 10(a), (b), and (c).

25 It was submitted that paragraph 10 of the amended statement of claim is the critical paragraph of the Plaintiff's pleading. It seeks to plead how the Defendant allegedly breached its best endeavours obligation. It was submitted that it is too vague, too general and pleaded in a rolled up way that prevents the Defendant understanding the case it must meet. It is alleged that there are three defects in respect of paragraph 10, being that:

(a) it is vague and conclusory in nature. It does not identify in detail the endeavours the Defendant was obliged to make or how it has failed to make those endeavours. In reality, it impermissibly pleaded conclusions from unstated facts. It was submitted that, unless the alleged breaches of the best endeavours obligation were sufficiently identified, the Defendant will not have sufficient notice of the case it must meet and the Court will not be in a position to decide the central issues at trial, and interlocutory processes will likely prove misdirected, wasteful and unproductive;

(b) it pleads obligations inconsistent with the Sale Contract (which also affects paragraph 8 of the amended statement of claim such that the paragraph should be struck out); and

(c) it is a rolled up and inclusive allegation of breach.

26 The Plaintiff submits that the Defendant's summons should be dismissed for the following five reasons:

(a) First, the Defendant's contention that subparagraphs 10(a)-(h) are vague and conclusory is misconceived because neither the legal standard of best endeavours or the rules of pleading require the Plaintiff to state what the best endeavours obligation required the Defendant to do or what the Defendant should have done, but rather it is sufficient for the Plaintiff to identify some step or steps which were not taken and which, if taken separately or in combination, would, on the balance of probabilities, have led the Defendant to procuring the rezoning as required:

(i) Put in this context, subparagraphs (a), (b), (d) and (e) of paragraph 10 are plainly understandable and unobjectionable because they provide, as an example, a period of delay in which the taking of a step in the absence of such a delay has increased the likelihood of the Defendant procuring the rezoning.

(ii) Further, in respect of the Defendant's complaints in relation to subparagraphs (c), (f), (g) and (h) of paragraph 10, the complaints are based on a misreading or misunderstanding of what is in fact alleged in those subparagraphs, and once what is alleged in paragraph 10 is read as a whole, it explains the basis upon which the Plaintiff contends the Defendant failed to use its best endeavours.

(iii) The principal objective of the pleading is that the Defendant has sufficient notice of the Plaintiff's case and the hallmark by which reference to its efficiency of pleading is said to be determined.

(iv) It was submitted that the generality of the pleading as presently drafted is appropriate and explicable given what the Defendant in fact did over the eight year period and the documents relevant to that question are exclusively within the Defendant's knowledge and not presently available to the Plaintiff.

(v) If there is some deficiency (which was denied), the authorities establish that the appropriate course of action is not to strike out the paragraphs, but allow the Plaintiff to replead after making of discovery in this proceeding.

(b) Secondly, the contention that the Plaintiff has pleaded inconsistent contractual obligations in paragraphs 8 and 10 is misconceived because, interpreted properly, the contractual obligation in fact imposed upon the Defendant is an obligation to use its best endeavours to procure the rezoning as soon as practicable after the Day of Sale until the Sunset Date. This is the product of the proper interpretation of the Sale Contract and provides the Sale Contract with the common sense and commercial meaning, as opposed to the Defendant's approach which reads clause 10.1 in isolation without any temporal limit.

(c) Thirdly, the Defendant's contention that the Plaintiff makes a rolled up pleading of breach when it intends to plead numerous breaches by the Defendant of its best endeavours obligation is also misconceived because the Plaintiff pleads a single breach, namely a breach by the Defendant of its obligation to use its best endeavours to procure the rezoning of the land by the Sunset Date. The matters in subparagraphs 10(a)-(h) are not allegations of separate and further breaches, rather they are allegations of fact which go towards establishing the singular breach alleged by the Plaintiff; they are examples of conduct which go to establishing that the Defendant failed to use its best endeavours to procure the rezoning by the Sunset Date.

(d) Fourthly, there is no basis for the Court to strike out the amended statement of claim as a whole given that none of paragraphs 8 or 10(a)-(h) should be struck out.

(e) Fifthly, there is no basis to obtain summary judgment in circumstances where the allegations to which the Defendant refers are not simply allegations of breach of the Defendant's best endeavours obligation, but are examples of why the Defendant breached that obligation upon expiry of the Sunset Date. Given this, the Plaintiff submitted that it is inappropriate for the Court to exercise its power of summary judgment where there remains live and contestable questions as to whether the obligation imposed upon the Defendant by the Sale Contract was a 'continuing' or 'once‑off' obligation, and the date when the Plaintiff's cause of action accrued for the purposes of applying limitations legislation. The existence of these questions precludes the Defendant from satisfying the heavy burden that summary judgment should be granted at this early stage.

27 I have formed the view that the issues in this proceeding, and thus the issues the Court will need to decide at trial, will include findings as to:

(a) the proper construction of the terms of the contract;

(b) what steps the Defendant took in seeking to achieve rezoning of the land by the Sunset Date; and

(c) whether those steps, in all the circumstances, properly fall within the obligation of best endeavours as defined by the authorities.

Defect 1 - Pleading insufficiently identifies best endeavours obligation breaches

28 I accept that the alleged breach or breaches of the best endeavours obligation must be sufficiently identified so that the Defendant has sufficient notice of the case it must meet. However, I am not of the view that the pleading is so deficient that the Defendant is in a position that it does not have sufficient identification of the breach or breaches and the manner in which the Plaintiff seeks to justify its case as to breach.

29 There is a level of contrariness to the submissions of the Defendant which are not consistent with the modern expectations of the pleadings process and the overarching obligations of the Civil Procedure Act 2010 (Vic).

30 That said, any complaint as to deficiency is one which can be cured by clarification and more specifically by provision of particulars. However, as the Plaintiff has argued, there is likely to be significant detail which is contained in the documentation in the possession of the Defendant alone. Whilst I do accept there are some documents which are publicly available, the level of detail which seems to be sought by the Defendant, at this stage, is just not in the possession of the Plaintiff and will not be until discovery is made.

31 What is required in a pleading, is the pleading of the material facts upon which a party relies; that is not the same as providing all of the circumstances, but requires sufficient facts pertaining to the circumstance to establish the essential elements of the cause of action. To stymie the progress of the proceeding at the initial pleading stage is not acceptable unless there is a substantial objection or some real embarrassment to be shown.

32 The question in issue as to the obligation to use one's best endeavours and whether, on the facts, the Defendant discharged that obligation, is a question to be determined on the merits at trial. The understanding of the concept of best endeavours was stated by the Court of Appeal in Joseph Street Pty Ltd v Tan,[10] as one which requires a person

to apply itself to the task of securing approval with the vigour to be expected of it if it were prudently attempting to secure its own interests, and to continue so to do until it should reasonably judge in the circumstances that further efforts would have such remote prospects of success as to be likely to be wasted.[11]

33 Consequently, how the Plaintiff alleges the Defendant failed in this task ought to be sufficiently pleaded, but it need not to be exhaustively so.

34 Insofar as there is a complaint as to subparagraphs 10(a), (b), (d) and (e) of the amended statement of claim of a bare plea of delay in preparing draft amendments and providing those draft amendments to Council, the question is whether there ought to be any greater detail as to what the Defendant did or did not do over this period to constitute delay.

35 I am not satisfied that this is a legitimate complaint. There may be a request to amend after discovery which would provide a more filleted focus on the best endeavours issue based on certain actions or inactions over the relevant time frame but we are not at that stage yet.

36 In respect of subparagraphs 10(c) and (f) of the amended statement of claim, these subparagraphs plead the Defendant's failure or omission to amend or alter the content in substance of the draft Amendments C151 and C199. It was alleged that the central vice with these paragraphs is that the Plaintiff does not identify how the Defendant should have altered or amended the draft amendments or how it ought to have taken account of negative submissions. There were approximately 8,000 public submissions opposing draft Amendment C151. The documentation exhibited for each Amendment were several thousand pages in length respectively. It was submitted that the Defendant is simply left to guess at the case put against it in this regard and that the particulars provided do not assist.

37 The Defendant is best placed to identify the categories of issues which are raised in the objecting submissions. It is accepted practice and a commonplace occurrence where a draft amendment is unsuccessful, that resubmission of a reformulated amendment will seek to deal with the legitimate planning or environmental issues raised by the objecting submissions. It would be unsurprising, given the number of objecting submissions, that many will be pro forma and raise exactly the same issue(s). Addressing objecting submissions is part and parcel of the process involved in the planning process to rezone land. Consequently, the Defendant will have considered the calibre and content of the objections received in forming its response in order to facilitate the planning scheme amendment. The forensic judgement as to whether the detail of these objections were required to be addressed in any reformulated amendment is no doubt a matter the Defendant will have considered in its rezoning process. I can see no legitimate difficulty in pleading to this part of the claim.

38 In relation to subparagraph 10(g), which alleges a failure to change Amendment C199 so that it ought not to have been 'substantially or substantively similar to amendment C151'. The allegation is that this paragraph, like the complaints in respect of subparagraphs 10(c) and (f) above, does not plead how the Defendant ought to have amended or altered them and is said to be impermissibly vague and general. The complaint is that the Defendant has no reference point to understand the nature and extent of changes that the Plaintiff says were necessary and, as such, the Defendant cannot know the case against it.

39 I disagree. The point apparently made by the Plaintiff in respect of subparagraph 10(g) seems to be that by not addressing the objections to the earlier Amendment, and resubmitting a version of an Amendment in substantially the same form, demonstrates a lack of the use of best endeavours. It may be said that this is a conclusionary pleading. However, in my view, it assists in demonstrating how the Plaintiff seeks to establish its claim in respect of best endeavours.

40 In relation to subparagraph 10(h), the allegation is that the Defendant failed to bring on a timely hearing for draft Amendment C199 or the Minister's timely determination of that draft Amendment. The complaint is that there is insufficient identification of what steps the Defendant ought to have taken.

41 Practitioners familiar with planning law and rezoning applications will be well accustomed to the length of time and the political process involved in persuading a local council or the Minister to take the procedural steps necessary. In my view, this is not so much a failure of pleading but rather a question of expert evidence.

42 The Defendant complains that the tenor of the Plaintiff's correspondence in defending the pleading suggests that it is entitled to plead wide ranging and unparticularised breaches, and then exercise a right to amend its pleading following discovery. This approach is said to ignore both the need for the pleading to demonstrate a proper basis to invoke the Court's processes for discovery, as well as the functional purpose of pleadings and particulars. It is argued that these considerations are particularly acute given the Plaintiff's generalised allegations of breach over a period of eight years in which the Defendant attempted to navigate a complex and large‑scale rezoning process.

43 I agree with the sentiment expressed by Connock J in Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3),[12] in which he states that a Court 'should not lightly permit' a party to plead widespread breaches without a demonstrated proper basis, 'with a view of generating a significant discovery obligation that might reveal some basis for a case'. However, the approach urged by the Defendant would be inconsistent with the overarching purposes of the Civil Procedure Act 2010 (Vic) (in particular, sections 8 and 9). I do not consider that the circumstances here, in respect of this pleading, fall into this category. I do accept that, insofar as the pleading could be read as one suggesting multiple breaches rather than a singular breach (which is how the Plaintiff put its position in this application), some clarification by amendment will further enhance the refinement of the issues in dispute; but I do not agree that the pleading is such that, read as a whole, it is properly characterised as being embarrassing, speculative or insufficiently expressed such that the Defendant does not know the case it has to meet.

44 The Defendant submitted that the Plaintiff had not chosen to avail itself of preliminary discovery and had acknowledged in August 2022 that it lacked sufficient material to decide whether to bring proceedings and stated that it had intended to file an application for preliminary discovery. This was the case in November 2023 and, now having commenced this proceeding, the Plaintiff must be understood to have a proper basis for its allegations of breach and this should be demonstrated in its pleading.

45 I agree with the general principle. However, I am not satisfied that this complaint is made out.

Defect 2 - Pleading obligations inconsistent with the Sale Contract

46 It is alleged that, in paragraph 8 of the amended statement of claim, the Plaintiff pleads a contractual obligation that does not accord with the terms of the written Sale Contract. It was argued that this paragraph is both embarrassing and must be struck out.

47 I disagree. The question of the interpretation of the terms of the contract is a matter for trial. If, as the Defendant alleges, the Plaintiff misquotes the terms of the contract, then they can simply plead that in their defence.

Defect 3 - Rolled up and inclusive pleading of breach

48 The Defendant contends that subparagraphs 10(a)-(h) are separate breaches of the Sale Contract. This is said to be important and highly relevant to the appropriate identification and limitation of the issues.

49 The Plaintiff's submissions are that the allegations in paragraph 10, read as a whole, explain the basis upon which the Plaintiff contends that the Defendant failed to use its best endeavours. They are not said to be separate breaches of the Sale Contract. Further clarity as to this can be rectified by an amendment to the pleading to put the Plaintiff's position on this beyond doubt.

50 Further, the Defendant complains that the alleged breaches do not separate out the facts and matters said to relate to the different obligations to that breach. As a consequence, it is submitted that it is impermissible, so far as it pleads allegations of alternative positions, which are confusingly intermingled.

51 Again, as set out at [62] below and as explained by the Plaintiff, there is a single breach, not multiple breaches, and this proposition this can be simply rectified.

52 Finally, the Defendant alleges that by including the words 'including by reason of', the chapeau to subparagraphs 10(a)-(h) of the amended statement of claim are pleaded only as examples of some wider universe of alleged breaches.

53 Again, this can be simply rectified for clarity by amendment.

54 Consequently, in view of the foregoing, I am not prepared to strike out paragraphs 8 and 10 of the amended statement of claim, but I will provide the Plaintiff with an opportunity to further amend those paragraphs in accordance with my observations above to make it clear the breach alleged is a single breach, and to specify the material facts or matters it identifies to appropriately put the Defendant on notice of the issues it needs to meet.

55 The Defendant alleges that the Plaintiff's compendious pleading in paragraph 10 of the amended statement of claim obscures the point or points at which the Defendant is said to have breached its obligations under the Sale Contract. The Defendant argued that this causes immediate prejudice and the timing of any breach is highly relevant to limitation issues.

56 The Plaintiff alleges that, on the face of the pleading, the contract was breached by the Defendant failing to use its best endeavours prior to 26 February 2018.[13] Any such breaches are statute barred by reason of section 5 of the Limitation of Actions Act 1958 (Vic), which has a six‑year limitation period from the date on which the cause of action accrued for breach of contract.

57 Consequently, any action founded on a contractual breach that occurred before 26 February 2018 is statute barred because:

(a) the proceeding was commenced on 26 February 2024;

(b) at that time, actions founded on the Sale Contract could only be brought if they accrued on or before 26 February 2018; and

(c) it is settled law in contract that the cause of action accrues on the breach of the contract. A cause of action in contract is not postponed until loss is suffered, unlike causes of action in which loss and damage is a necessary element.[14]

58 Three subparagraphs from the amended statement of claim are argued to fall into this category, being subparagraphs 10(a), (b) and (c), which refer to matters or events which occurred on 2 March 2016 and 25 September 2017. It was argued that because of the rolled up nature of the pleading, there is a lack of clarity around when some of the breaches are said to have occurred and obscures the nature of the alleged obligation which the Defendant is said to have breached; namely, whether the assertion is that the Defendant's best endeavours obligation is a continuing obligation, or an obligation to do a definite act capable only of a breach once and for all.

59 Reliance was placed on Larking v Great Western (Nepean) Gravel Ltd (in liq) ('Larking'),[15] where the issue was whether the licensee was obligated to erect a fence was a continuing or a once and for all obligation. The High Court of Australia held that, on a proper construction of the agreement, the obligation to erect the fence was a once and for all obligation and, thus, the distinction was not only relevant to waiver, but also to damages as well as a lapse of time under statutes of limitation.

60 It was submitted that the allegations in subparagraphs 10(a), (b) and (c) of the amended statement of claim, given that they occurred more than six years before the proceeding was commenced, would be statute‑barred and thus have no prospect of success. This issue turns on pleaded dates of breach rather than the question of when loss was suffered and, as such, is amenable to summary dismissal. In these circumstances, the Court ought to grant summary judgment in respect of subparagraphs 10(a), (b) and (c).

61 On its face, those events are alleged to be breaches of singular effect and will fall outside the limitation period. However, on one view, they form part of the narrative over the period of time which might be argued to demonstrate a course of conduct from which the Court can conclude there is a failure to use best endeavours.

62 The Plaintiff has clarified that the breach relied upon is a singular one and not multiple breaches. The Plaintiff contends that it alleges a single breach of the Sale Contract; namely, a breach of its obligation to use its best endeavours to procure the rezoning of the land by the Sunset Date which occurred on 6 September 2022, being the day after the expiry of the Sunset Date. The allegations to which the Defendant refers are not relied upon as independent breaches of the Sale Contract but examples of how the Defendant breached its single obligation to use its best endeavours to procure the rezoning of the land by the Sunset Date. Once this is understood, there is no warrant for asserting, as the Defendant does, that the Plaintiff relies on breaches that occurred more than six years ago. The Plaintiff clearly states, in its submissions, that it relies on a single breach of the best endeavours obligation that crystallised on 6 September 2022, but in recognition that the contractual obligation imposed on the Defendant was effective for a period of eight years, refers to factual circumstances that are examples of how the Defendant breached its obligation to the Plaintiff throughout that period to use its best endeavours.

63 The Plaintiff contends that the Defendant cannot discharge its heavy burden to establish that the Plaintiff has no real prospect of overcoming the limitations defence, in the sense that either the pleaded claim falls wholly outside the limitation period or that there are claims that arose within the limitation period, but there was no real prospect of sustaining them at trial.[16] This is a difficult burden to establish on a summary basis. It was submitted that if the Defendant contends that what has occurred here necessarily involves allegations of continued or multiple breaches of its best endeavours obligation, as opposed to the single breach upon which the Plaintiff relies, that will involve a question of fact to be determined at trial.

64 I accept this proposition. As Emerton J observed in Hodgson v Amcor Ltd,[17] referring to Dixon J in Larking, the distinction between a one‑off obligation and a continuing duty may be of difficult application in a given case. Factually and contextually dependant issues should be determined at trial after appraisal of all the facts.

66 A cautious approach on a limitations question is also supported by the High Court of Australia's decision in Wardley Australia Ltd v Western Australia,[18] where Mason CJ, Dawson, Gaudron and McHugh JJ determined that it is 'undesirable' for questions concerning limitations to be determined at an interlocutory stage where a question exists as to when the cause of action accrued, except in the clearest of cases.

67 As the Defendant acknowledged in its reply submissions, if the Plaintiff is contending a single breach, the prospect of summary judgment on this ground does not arise.[19] However, the pleading should conform to that position and not leave open a more broadly identified case of multiple breaches. Further, to allow this to remain open on any ambiguity in the pleading would unfairly deprive the Defendant from raising a limitations defence.

68 I find there is no case for summary dismissal on the material before me, particularly given the clarification by the Plaintiff of the more narrow single breach claim it seeks to make.

69 To move this proceeding forward, I will provide the Plaintiff with an opportunity to amend its pleading, in particular paragraphs 8 and 10, so that the single breach is clear and that the material facts and matters which it relies upon in support of that breach are similarly clarified.

70 The Defendant's application has forced some clarification of the pleadings by way of the submissions made by the Plaintiff which sensibly should be translated into an amended pleading.

71 However, it would be inconsistent with the expectations of the Civil Procedure Act 2010 (Vic) to make the orders in the terms sought by the Defendant. The timely and efficient disposition of proceedings requires the parties to limit the issues in dispute and not to require the parties to take additional unnecessary interlocutory steps. There is sufficient material in the submissions made by the parties in this application to satisfy me that the Plaintiff should make a clarification by way of amendment to the pleadings.

72 Consequently, I will grant leave to the Plaintiff to file an amended statement of claim to clarify the issues as identified.

73 In these circumstances, and for the reasons I have set out above, I will reserve the costs of and incidental to the summons.

[1] At the time of the filing of the Defendant's summons on 7 August 2025, the current version of the rules were the Supreme Court (General Civil Procedure) Rules 2015. On 8 September 2025, prior to the hearing and the publication of this ruling, the Supreme Court (General Civil Procedure) Rules 2025 (Vic) came into effect replacing the Supreme Court (General Civil Procedure) Rules 2015. The rules cited in the Defendant's summons and in the parties' submissions from the 2015 version are identical to those in the 2025 version. For the purpose of addressing the summons, this ruling will refer to the 2025 rules.

[2] Being 5 September 2014, the date in which the parties entered into the Sale Contract.

[3] Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316, [25](c) (Dixon J) ('Wheelahan').

[4] Uber Australia Pty Ltd & Anor v Andrianakis [2020] VSCA 186; (2020) 61 VR 580, [50] (Niall, Hargrave and Emerton JJA) ('Uber') cited with approval in Dixon J's summary in Wheelahan.

[6] Uber [53]-[54] (Niall, Hargrave and Emerton JJA).

[7] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, [35] (Warren CJ and Nettle JA); Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [127] (Whelan, Santamaria JJA and T Forrest AJA).

[8] [1964] HCA 69; (1964) 112 CLR 125, 129.

[9] Mutton v Baker [2014] VSCA 43, [19] (Santamaria and Whelan JJA).

[10] [2012] VSCA 113; (2012) 38 VR 241.

[12] [2022] VSC 283, [323], citing Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161, [143] (Doyle J).

[13] Defendant's submissions filed 7 August 2025, [78]-[80].

[14] Barfly's Nominees Pty Ltd v Kliger Partners (A Firm) [2019] VSCA 256, [169] (Tate, Kyrou and Emerton JJA); see, e.g., Iverson v Howen [2008] NSWSC 1246, [12].

[16] D'Aquino v Trovatello [2015] VSCA 78; (2015) 47 VR 31, 43 [53] (McLeish JA, Warren CJ and Ashley JA agreeing).

[17] [2010] VSC 204, [66] (Emerton J).

[18] (1992) 174 CLR 514, 533 (Mason CJ, Dawson, Gaudron and McHugh JJ).

[19] Defendant's reply submissions filed 15 September 2025, [24].