Walker Panels Pty Ltd v Pace Building Group Pty Ltd [2025] VCC 984

63 Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.[2]

64 Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.[3]

1. It is well established that the test under s 63 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success. The test is to some degree a more liberal test than the previous "hopeless" or "bound to fail" test.[4]
2. It must always be borne in mind that the power to summarily terminate proceedings is one that "should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence".[5]
3. The power ought to be exercised consistently with the overarching purposes of the CPA and having regard to the fact that, if granted, it will deprive a party of the opportunity of pursuing its claim or defence.[6]
4. In a straightforward case of the enforcement of the clear provisions of a deed, there should be summary judgment. But if the terms of the deed "leave open to a barely but sufficient extent" the legal consequences, a party may have a defence which is not fanciful. If there is a "fair dispute" as to the meaning of the document, a court may give leave to defend a claim.[7]
5. Where there is an inconsistency between clauses in a settlement deed, and the construction of the deed may involve evidence about the parties' commercial purpose for entering into the settlement, summary judgment may not be appropriate. If the evidence a party relies on should be properly evaluated against all of the evidence at trial, and it cannot be said there is no real prospect of success, to grant summary judgment would risk the court doing a serious injustice to a party.[8]
6. On the other hand, if the Court is satisfied of the construction contended for by the applicant for summary judgment, it should allow the application. In Power & Another v Schembri & Another, [9] the issue was whether a proper construction of a settlement deed made the second defendant jointly and severally liable with the first defendant. This required a consideration not only of the text of the document, but also the surrounding circumstances known to the parties at the time the contract was entered into and the purpose and object of the contract. In that case, there was no attempt by the parties to invoke extrinsic evidence to assist in the construction of the settlement deed. The Court was satisfied that the second defendant was not liable under the deed, and allowed the summary judgment application, noting the express terms, business commonsense, and that the deed did not include any unambiguous language.

1. Walker Panels referred to the following matters:
   1. On 25 November 2020, Walker Panels and Pace enter into a construction contract for Stage 1 of the Blackburn project (Walker Panels called this the Stage 1 Contract).
   2. On 7 October 2021, Walker Panels and Pace enter into a further construction contract for Stage 2 of the Blackburn project (Walker Panels called this the Stage 2 Contract).
   3. Between 10 February and 12 August 2022, Walker Panels made repeated requests for the release of the security retention for Stage 1. This was not released.
   4. On 5 June 2022, Walker Panels submitted a payment claim to Pace for Stage 2, claiming $305,318.23 ('Payment Claim').
   5. On 18 August 2022, an adjudication determination was issued in respect of Walker Panels' payment claim for Stage 2, determining that Pace must pay Walker Panels $160,476.54 ('Adjudication Determination').
   6. On 29 August 2022, Walker Panels obtained judgment for the determination, plus interest and costs, for a total of $169,118.03 ('Judgment').
   7. On 14 September 2022, Walker Panels and Pace entered into a Deed of Settlement and Release, agreeing to pay Walker Panels $319,000.00 ('Deed').
   8. On 16 November 2022, Walker Panels' solicitors sent a letter of demand to Pace for payment of retention and outstanding invoices for Stage 1.
   9. On 22 November 2022, Pace responded to the letter of demand, denying liability and claiming that the Deed resolved all claims.
2. Walker Panels submitted that the claim in this proceeding is for the retention due under the Stage 1 Contract works. Pace's argument that the Stage 1 and Stage 2 Contracts were to be read together is not supported by the undisputed evidence. That evidence includes that there were two separate contract documents, with different contract numbers, contract sums, nominated representatives, dates for practical completion, documents and rates in the schedule. Further, Walker Panels said it was asked to tender for a second contract.
3. On that basis, Walker Panels submitted that it is entitled to payment of the retention under the Stage 1 Contract. This claim is not covered by the Deed. The Deed only released claims in relation to the Stage 2 Contract works, and not Stage 1 Contract works. The proper construction of each contract does not entitle the Court to reach the contrary conclusion.
4. Walker Panels contended that the terms of the Deed are unambiguous, especially:
   1. Recital A confines the term 'Contract' to be the contract "dated 7 October 2021 ... to carry out the supply of precast panels for Stage 2 of the construction works...".
   2. Recitals A - E do not mention the Stage 1 contract or works, or any of the emails from Walker Panels seeking the release of the Stage 1 retention.
   3. Recital F and clause 4.1 confines the Walker Claims and the Pace Claims to be limited to the Claim, the Determination, the Judgment and all matters concerning the 'Contract' and all works performed under and in connection with the 'Contract'. As 'Contract' is defined in Recital A to be the Stage 2 works, the release cannot be read as including the Stage 1 retention.
   4. It was open to the parties to include the stage 1 retention claim in the Recitals, but they did not. Similarly, they could have mentioned Stage 1 in the release but did not.
5. Walker Panels submitted that as the terms of the Deed are unambiguous, evidence of extrinsic material is not admissible.[10]
6. Alternatively, if the Court does not agree that the Deed is plain on its face, and allows evidence of surrounding circumstances, then that evidence demonstrates that the Release applies only to Stage 2 of the works. This evidence includes:
   1. It was open to the parties to include reference to the Stage 1 Contract in the Deed, but the decision was made not to include it.
   2. There were two separate contract documents, with different details on each.
   3. Walker Panels was asked to tender for the second contract in March 2021.
   4. Subsequent correspondence from Pace's solicitors seems to agree that there were two contracts.

1. Pace's submissions and evidence can be summarised as follows:
   1. The Deed, properly construed, had the effect of resolving all claims, including the claims in this proceeding.
   2. Where the Deed is ambiguous, the Court is entitled to receive evidence of surrounding circumstances.[11]
   3. In cases where the sole issue is the proper construction of the contract, summary judgment should be refused where there is a fair dispute about the meaning of the document.[12]
2. Clause 4.1 of the Deed relevantly provides that the release is of the 'Walker Claims'. Recital F(i) defines the 'Walker Claims' as:

the Payment Claim, the Determination, the Judgment and all matters in relation to and in connection with the Contract (including security/retentions under the Contract) and works performed under and in connection with the Contract (the Walker Claims).

1. Pace pointed out that in drafting that definition, the parties specifically mentioned the issue of security/retentions as being released and used the words 'in connection with the Contract'. Pace submitted that the use of the words 'in connection with' suggests that the parties objectively intended for the release to be wider than the mere four corners of the 'Contract' as defined in the Deed.
2. As there is ambiguity in the words used in the Deed, the circumstances surrounding the Deed become relevant. There is evidence that the parties were in dispute about a number of matters at the time of the Deed, including:
   1. The Adjudication Determination and the Judgment obtained ex parte from this Court on 29 August 2022 that Pace must pay Walker Panels $160,476.54.
   2. The recitals of the Deed make specific mention of that adjudicated amount, and the desire of the parties to "avoid the expense, delay and uncertainty of litigation" generally (Recital F).
   3. The parties were also in dispute about the release of retention for the Stage 1 Works. On 12 August 2022, a mere month before the Deed was executed, Walker Panels was demanding the release of its retention for the Stage 1 Works.
3. Pace submitted that the closeness in time of the demand to the Deed leads to an objective inference that when the parties executed the Deed, their objective intention was to settle both the dispute about the adjudicated amounts, as well as the outstanding retention. That view is consistent with the deliberate use of the words 'including security and retentions' in the definition of 'Walker Claims' in the Deed.
4. Further, while the Deed defined the 'Contract' as 'contract dated 7 October 2021 ... to carry out the supply of precast panels for Stage 2 of the construction works...', the evidence of Mr De Longville of Pace was that the works were originally to be constructed in a single stage, but had to be split because of planning requirements. That evidence should be tested at trial, but if it is accepted, then that would open the door for Pace to argue that the Stage 1 Works and the Stage 2 Works were 'in connection with' one another and thus captured by the definition of 'Walker Claims' under the Deed.
5. Pace also invoked equitable principles relevant to the interpretation of a release, as discussed by the High Court in Grant v John Grant & Sons Pty Ltd[13], ('Grant'). In that case, the release was 'contained in a deed by which certain disputes were compromised and settled. It is expressed in very general words.'[14]
6. According to the recitals of the deed in Grant, the parties had been involved over a long period in disputes, leading to the proceeding and to other threatened litigation, although no particulars were given. The deed contained the following terms:

Each of the parties hereto hereby releases the other and others of them from all sums of money and accounts and civil actions proceedings claims and demands whatsoever which any of them at any time had or has at or prior to the completion against the other for or by reason or in any (sic.) respect of any act, cause, matter or thing and without limiting the generality thereof the H. C. Grant family releases the defendants in the hereinbefore recited litigation from all costs in respect of the said litigation.[15]

1. The arguments in Grant were put on three bases, including:
   1. the established principle that the general words of a release should be restrained by a particular recital or introductory matter;
   2. the established principle that 'the general words in a release are limited always to that thing or those things which were especially in the contemplation of the parties at the time when the release was given',[16] and that there was no dispute concerning the subject matter of the dispute;
   3. equitable considerations, that 'whatever construction is to be given by law to the deed, in equity it would be restrained according to the knowledge and intent of the parties respectively claiming and denying the benefit of the release.'[17]
2. Pace referred to the High Court's comments on the third argument. The Court examined the authorities regarding equitable considerations, and continued:

From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.

1. Applying the rules of construction to the Deed, I first consider whether on its face its meaning is clear. In my view, its meaning is ambiguous, especially in three areas, namely the Recitals, the definition of 'Claim' in clauses 1.1 and 4.1, and the settlement sum.
2. Recital B does not sit comfortably with Walker Panels' interpretation that the settlement only applies to a stage 2 contract. The Recitals are as follows:
   1. Recital A refers to a Contract dated 7 October 2021 for the supply of precast panels for Stage 2 of the construction works.
   2. Recital B refers to a Payment Claim dated 25 June 2021 - that is, it predates the contract in Recital A.
   3. Recital C states that Pace provided a Payment Schedule in response to the Payment Claim defined in Recital B.
   4. Recital D states the parties obtained an Adjudication Determination in relation to the Payment Claim defined in Recital B.
   5. Recital E states that Walker Panels registered a Judgment against Pace based on the Adjudication Determination referred to in Recital D.
   6. Recital F then lists what the parties have agreed to settle, and, in relation to the Walker Claims, this is:
      1. the Payment Claim defined in Recital B,
      2. the Adjudication Determination defined in Recital D,
      3. the Judgment defined in Recital E, and
      4. "all matters in relation to and in connection with the Contract (including security/retentions under the Contract) and works performed under and in connection with the Contract..."
3. In my view, because the defined Payment Claim in Recital B predates the date of the alleged Stage 2 contract, there is real doubt as to how it can be a claim for the Stage 2 works, as contended by Walker Panels. Mr Watt, the solicitor for Walker Panels, deposed that the Payment Claim was a claim regarding the Stage 2 contract and it was submitted to Pace on 25 June 2022, after the date of the contract. Mr Watt also deposed that it was that Payment Claim which was the subject of the adjudication referred to in Recital D. Neither the Payment Claim nor the Adjudication Determination are in evidence and so I cannot verify what he has deposed. However, his evidence is illogical - how can a payment claim relate to a contract which has not yet been entered into? In the absence of any first-hand evidence explaining the anomaly, I consider the meaning of the Deed to be ambiguous.
4. Further, the Release at clause 4.1 of the Deed is a release of 'all Claims' (with a capital C). The clause contains several typographical errors (although these are of no effect) and states as follows:

Subject to paragraph 4.2, each parties mutually, unconditionally and irrevocably releases and forever discharges the other and its related bodies corporate, and its related bodies corporate, and each of their current and former officers, employees and agents from all Claims, actions, suits, demands, proceedings, causes of action and costs of whatsoever kind arising out of or in any way connected with the Walker Claims and the Pace Claims.

1. The word 'Claim' is defined at clause 1.1 of the Deed as follows:

In this Deed, unless the subject or the context otherwise requires:

(l) 'Claim' means a claim for any loss, damage, expense, liability, cost or for any payment of money (including damages):

(i) under, arising out of, or in any way in connection with, the Contract;

(ii) arising out of, or in any way in connection with, the work under the Contract;

(iii) arising out of, or in connection with, either's conduct before the Contract;

(iv) in quantum meruit;

(v) in quasi-contract;

(vi) for unjust enrichment; and

(vii) otherwise at law or in equity including pursuant to a legislative requirement, statute (including, but not limited to, the Building and Construction Industry Security of Payment Act 2002), tort (including for negligence, negligent misrepresentation or otherwise) or for restitution or unjust enrichment...

1. In my view, even if Walker Panels is correct that there were two separate contracts, and that the Contract referred to in the Deed is only the second contract, it is nevertheless arguable that the definition of 'Claim' in clause 1.1 means the release applies to claims under the first contract. This is because the definition of 'Claim is broad enough to encompass any action or suit connected with the Walker Claims, either:
   1. 'in connection with' the Stage 2 contract; and/or
   2. in connection with the parties' 'conduct before the Contract'.
2. On that definition, even if Walker Panels is correct that there were two separate contracts, and that the Contract referred to in the Deed is only the second contract, it is arguable that clause 1.1 means the release applies to claims under the first contract.
3. Further, the Settlement Sum is $319,000.00. The Adjudication Determination and the Judgment were for only $160,476.54. Walker Panels has not provided any explanation why the settlement sum is double the value of the matters it alleges were covered by the settlement. Nor has it explained the value of the 'Pace Claims' which were also compromised in the Deed. If Pace was entitled to payment, then the value of the Settlement Sum is even greater than $319,000.00. In the absence of any other explanation on the face of the Deed, it is arguable that the settlement incorporated more than the Stage 2 works.
4. For at least those three reasons, I am satisfied that the meaning of the release in the Deed is ambiguous. Although Clause 11 provides that the written document is the entire agreement, in cases where the entire agreement is ambiguous, I am able to apply the rules of construction set out in the authorities. I therefore may have regard to extraneous circumstances in construing the agreement.
5. Those circumstances include the evidence of Mr De Longville for Pace, that the development was originally to be carried out in one stage. It was only split into two stages to allow works on Buildings C and D to commence, while waiting for secondary consent from the local council for Building A. He did not go so far as to say there was only one contract, however Pace submitted that it is arguable, that the two stages of work could be viewed as one contract formed by two Instruments of Agreement.
6. Walker Panels' evidence in response to this submission was that it was invited to tender for the Stage 2 works, which indicates Pace always considered there were two separate contracts. I have reviewed the correspondence relied on by Walker Panels in support of this submission but find it is inconclusive. Nowhere is the word 'tender' used. Instead, Pace sent 'updated Structural Documentation for Pace Blackburn Stage 2' to Walker Panels, and asked 'Could you please begin both a review and send through a quote for this stage?'. As addressed, the design should be similar to Stage 1 but it would be good to get some feedback and comments. In my view, that correspondence is not determinative of the question whether Pace asked for a tender for a new contract, or whether it was a continuation of the existing relationship. Pace's request could be read either way, and further evidence will be required to determine this issue.
7. Similarly, the fact that there are two Formal Instruments of Agreement, with different contract numbers and dates and details, does not necessarily mean there are two different contracts. It may be that the parties had always agreed that Walker Panels would provide the concrete panels for the four buildings, but with the price for buildings A and B to be determined after the change of use was approved. These are matters to be determined at trial. I record here that I have made no findings as to whether there was one contract or two. I have attempted to be deliberately noncommittal in these Reasons when referring to stages and contracts. If this question is ultimately relevant, it must be answered following a trial, so that evidence can be given and tested.
8. Another relevant extraneous circumstance is the timing of the settlement in relation to Walker Panels' demands for release of the Stage 1 retention. Only a month before the Deed was executed, Walker Panels was demanding the release of its retention for the Stage 1 Works. I accept Pace's submission that the closeness in time of the demand to the Deed may lead to an objective inference that when the parties executed the Deed, their objective intention was to settle both the dispute about the adjudicated amounts, as well as the outstanding retention. That view is supported by the deliberate use of the words 'including security and retentions' in the definition of 'Walker Claims'.
9. I also note the possible application of equitable principles, as contended by Pace, mitigate against summary judgment being ordered. Clause 1.1(l)(vii) of the Deed defines 'Claim' to include 'any loss, damage, expense, liability, cost or for any payment of money (including damages) ... otherwise at law or in equity'. As I consider there are legitimate arguments about the construction of the Deed which will require findings about the knowledge and intent of the parties, I am bound to follow the High Court in Grant. Equity will not allow a deed to be construed contrary to the knowledge and intent of the parties respectively claiming and denying the benefit of the release. Such a determination will require evidence to be given at trial, and it is not appropriate for summary judgment.
10. For the above reasons, on the material before the Court, I am not satisfied that Pace's defence has no real prospect of success. To the contrary, Pace's arguments about the interpretation of the Deed are fair and arguable and turn on objective evidence of surrounding circumstances which should be tested at trial. Both parties' evidence can only be properly evaluated against all the evidence. To grant summary judgment would risk the Court doing a serious injustice to Pace.
11. Further, as Irving AsJ said in VS Property, 'I am also satisfied that summary judgment should not be granted ... because it is not in the interests of justice to do so. The dispute, involving contested evidence affecting the correct construction of commercial agreements is of such a nature that only a full hearing on the merits is appropriate.'[18]
12. I will therefore dismiss Walker Panels' application for summary judgment.

1. Walker Panels submitted that if the Court is against it on its primary claim, then for the same reasons, both paragraph 3A and 8 of Pace's Defence are liable to be struck out under Order 23.02 as being frivolous or vexatious.
2. For the reasons given above in relation to the summary judgment application, I have made no finding whether there was one or two contracts. These are matters to be determined after evidence is given and tested at trial. Accordingly, Walker Panels' application to strike out these paragraphs of the Defence is dismissed.

1. Walker Panels submitted that as Pace had adduced no evidence to counter the claim, that $15,333.37 remains owing on account of Walker Panels' outstanding invoices. Judgement for that amount should be entered. It relied on the evidence in paragraph 22 of the affidavit of Mr Watt that the money is owed.
2. In response, Pace submitted that the $15,000 claim is captured by the breadth of the release in the Deed. Although it is not specifically mentioned in the Deed, it may be construed as a payment 'in connection with' the Contract. It is not appropriate to determine this claim on a summary judgment application and instead it should be determined along with the other claims.
3. I agree with Pace. The construction of the Deed may influence the outcome of the claim for $15,333.37. Accordingly, I will dismiss this application for judgment.

1. For the reasons set out above, I will order that the plaintiff's summons dated 17 October 2024 is dismissed.
2. In respect of costs, unless any party seeks any different order within 7 days, I will apply the usual rule and order the plaintiff to pay the defendant's costs of and in connection with the summons on the standard basis.

I certify that these 11 pages are a true copy of the judgment of Her Honour Judge Kirton delivered on 16 July 2025.

[1] Civil Procedure Act 2010 (Vic) ('CPA').

[2] CPA (n 1) s 63.

[3] CPA (n 1) s 64.

[4] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 [35] ('Lysaght'); Matthews v SPI Electricity (Ruling No 2) [2011] VSC 168 [22]; APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd [2011] VSC 555 [4].

[7] APN Funds Management Limited v Australian Property Investments Strategic Pty Ltd [2011] VSC 515 [22], upheld on appeal in APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd [2011] VSC 555 (n 4); JBS Southern Aust Pty Ltd & Anor v Westcity Group Holdings Pty Ltd & Ors [2011] VSC 476 [16].

[8] VS Property and Holding Pty Ltd & Anor v Zurzolo & Anor [2023] VSC 453 ('VS Property').

[9] Power & Another v Schembri & Another [2017] QDC 269 [13]-[19].

[10] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 [352].

[12] JBS Southern Australia Pty Ltd & Anor Westcity Group Holdings Pty Ltd & Ors [2011] VSC 476 [12] (Croft J); APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd [2011] VSC 555 (Bell J).

[13] Grant v John Grant & Sons Pty Ltd (1954) CLR 112 ('Grant').

[18] VS Property (n 8) [48]-[49].