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[2026] NSWSC 540
Supreme Court of NSW
2026-05-19
Muston J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Young v Cowley [2026] NSWSC 540
Hearing dates: 1 May 2026
Date of orders: 19 May 2026
Decision date: 19 May 2026
Jurisdiction: Common Law
Before: Muston J
Decision: (1) Grant leave to the plaintiff to bring his application for leave to appeal from the decision of the primary Judge out of time.
(2) Grant leave to the plaintiff to appeal from the decision of the primary Judge.
(3) Set aside the orders made by the primary Judge on 11 November 2025 and, in lieu thereof, order that:
(a) The amended statement of claim filed 10 April 2025 is struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 14.28.
(b) Grant leave to the plaintiff to file a further amended statement of claim by 9 June 2026.
(c) The proceedings be remitted to the Local Court for determination.
(4) Order that the defendants pay the plaintiff’s costs of the proceedings.
(5) If either party contends for a different costs order to that which is provided for in Order 4, they should make an application to my Associate by 4pm 26 May 2026, whereupon I will vacate Order 4.
(6) Should an application for a different costs order be made pursuant to Order 5:
(a) That application should include submissions of not more than 2 pages and any necessary evidence;
(b) The other party may serve and provide to my Associate responsive submissions of not more than 2 pages and any necessary evidence by 4pm 2 June 2026; and
(c) I will determine the question of costs on the papers.
Catchwords: APPEALS — appeal from a decision of the Local Court — where summons filed in the wrong court but within time — whether leave should be granted to appeal out of time
APPEALS — appeal from decision to summarily dismiss amended statement of claim — where primary Judge ruled that proceedings were statute-barred — whether plaintiff was given adequate chance to consider defendant’s Limitation Act 1969 (NSW) argument
APPEALS — appropriate relief — where amended statement of claim fails to properly identify cause of action — whether inadequacy a standalone reason for summary dismissal — whether plaintiff should be given further opportunity to plead the claim
Legislation Cited: Civil Procedure Act 2005 (NSW), s 63
Limitation Act 1969 (NSW), ss 14, 54
Local Court Act 2007 (NSW), Div 4 Pt 3, s 40
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Batistatos v Roads and Traffic Authority of New South Wales; (2006) 226 CLR 256; [2006] HCA 27
Butler v Fairclough (1917) 23 CLR 78
Caroline Chamoun v Gemi Nominees Pty Limited [2025] NSWSC 1300
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Dougan v Mann [2025] NSWCA 109
Gardiner v National Australia Bank Ltd; National Australia Bank Ltd v Gardiner [2023] NSWSC 45
General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Gould v Johnson (1702) 2 Salk 422; 91 ER 367
Massarani v Kriz [2020] NSWCA 252
McGinn v Cranbrook School [2016] NSWCA 226
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114
Nostro Claimco Pty Ltd v Titus Tekform Pty Ltd [2026] NSWSC 445
Price v Spoor (2021) 270 CLR 450; [2021] HCA 20
Shaw v State of New South Wales [2012] NSWCA 102
Wardley Australia Limited v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1
York Air Conditioning and Refrigeration (A/asia) Pty Ltd v Commonwealth of Australia (1949) 80 CLR 11; [1949] HCA 23
Category: Principal judgment
Parties: Gregory Young (Plaintiff)
Christopher Cowley (First Defendant)
CKJ Building Services Australia Pty Ltd (Second Defendant)
Representation: Counsel:
Self-represented (Plaintiff)
A Keevers (Defendants)
Solicitors:
Sparke Helmore (Defendants)
File Number(s): 2025/00480814
This is an appeal, brought under Division 4 of Pt 3 of the Local Court Act 2007 (NSW), from the decision of the Gosford Local Court to dismiss the plaintiff’s amended statement of claim pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).
As at 6 October 2017, the plaintiff had issued invoices to one or both of the defendants in the sum of $97,030. I infer that these invoices related to work done by him prior to that date and for which he said he was entitled to be paid. An agreement said by the plaintiff to have been reached with one or both of the defendants in relation to these invoices lies at the heart of these proceedings.
In October 2017, both the plaintiff and first defendant signed a letter which read as follows:
“Greg,
I have arranged finance for the Ford Ranger.
Delivery in late December.
Please confirm the following vehicle specifications.
Ford Ranger PX 3.2L XLT
Dual Cab
Colour: Ingot Silver
Trim: WVR/WKD
Tow Bar
ARB Accent Canopy keyless entry: Ingot Silver
AGREEMENT
On receipt of ownership for the new Ford Ranger described above, you agree invoices totalling $97,030.00 will be withdrawn and make no further claim for payment regarding work up to and including 6 October 2017.”
It is not in dispute that in early 2018, the first or second defendant purchased a new Ford Ranger Dual Cab vehicle and delivered it to the plaintiff for his personal use. However, at all times, the second defendant has retained legal ownership of the Ford Ranger and met all costs associated with registering and insuring that vehicle. It was said by the plaintiff that the second defendant’s continued ownership of the Ford Ranger was a consequence of that vehicle remaining subject to a finance arrangement of some description.
The plaintiff has had an extensive history of work with the second defendant. Relevantly, between early 2018 and late 2024, the plaintiff was working in some capacity with or for the second defendant. He has said that throughout that period he was a salaried employee of the second defendant. However, the precise nature of whatever arrangements were in place between them is not apparent from the evidence.
In October 2024, the first defendant sent an email to the plaintiff. It is not clear whether this email was sent by the first defendant in his personal capacity or on behalf of the second defendant. In the email, the first defendant confirmed that the plaintiff was “finishing up with” the second defendant. The email went on to identify the following as “things that weren’t discussed and need to be resolved”:
“CKJ to sign over Ford Ranger to you.
Hilux to be returned when holiday pay is paid up.
Returning of any tools you still have or were purchased on CKJ account.
Return credit and Bunnings card.”
The evidence does not disclose whether any of these matters were ever resolved between the parties. What is clear is that legal title in the Ford Ranger has not been transferred to the plaintiff.
On 3 February 2025, the plaintiff commenced proceedings in the Local Court. The proceedings were commenced by way of a statement of claim, which claimed $97,030, interest in the sum of $25,227.80, and the filing fee of $347.
The statement of claim articulated the plaintiff’s claim against the defendants as follows:
“1 The Defendants and Plaintiff by way of mutual agreement entered a commercial contract on 6 October 2017. 2 The Defendants at that time had not compensated the Plaintiff for past services rendered to the Defendants by the Plaintiff. 3 The sole purpose of the contract was to formalise that the Defendants were to fully compensate the Plaintiff for those past services rendered to the Defendant by the Plaintiff. 4 For commercial reasons the Defendants and the Plaintiff agreed that the Defendants would provide a new Ford Ranger XLT vehicle at no cost to the Plaintiff to compensate the Plaintiff for the cost incurred by the Plaintiff in providing the services rendered to the Defendants. 5 On or about 30 January 2018 the Defendants effectively [commenced] the contract by delivering to the Plaintiff a new Ford Ranger XLT vehicle registration DTN 03E including unsigned registration and warranty documents. 6 The Defendants at the time of delivery of the Ford Ranger did not transfer ownership of the Ford Ranger XLT to the Plaintiff and the Defendants have continued since that date to retain ownership of the vehicle in default of the Defendants and Plaintiffs contract entered-on 6 October 2017. 7 The Defendants have persistently implied and or expressly advised the Plaintiff the ownership of the Ford Ranger would be transferred without conditions to the Plaintiff and have continued to act in default of the contract. 8 The Defendants since 30 January 2018, the effective commencement date of the contract have not fully compensated the Plaintiff for the past services rendered to the Defendants. 9 The Plaintiff claims the sum of $97,030.00 plus interest for past services rendered to the Defendants that have not been offset by the [Defendant’s] default of the contract between the Defendants and the Plaintiff.”
On 10 April 2025, consent orders were filed in the Local Court, pursuant to which the plaintiff was granted leave to file an amended statement of claim. On the same day, the amended statement of claim was filed by the plaintiff.
The amended statement of claim incorporated a number of minor additions to the plaintiff’s pleaded case, and particularised the pleaded allegations made. More substantial amendments were made to paragraph 9 of the statement of claim and two fresh paragraphs were added. These more substantial amendments read as follows:
“9 The Defendants breached the agreement on or after 20 November 2024 between the Plaintiff and the Defendants by way of wilful default and deceptive conduct for a collateral purpose that was not a condition of the agreement entered 6 October 2017. The Defendants have elected not to be bound by the agreement. The plaintiff claims the sum of $97,030.00 plus interest, that amount gave rise to the agreement entered 6 October 2017 and has not been waived by the Plaintiff as a result of the [Defendant’s] wilful default of the agreement on or after 20 November 2024.
Particulars
(i) The [Defendant’s] purportedly terminated the employment of the Plaintiff in the last quarter of 2024.
(ii) In late November 2024 a dispute developed between the Plaintiff and the Defendants regarding underpayment of employment entitlements which are now the subject of District Court proceedings 2025/00073617.
(iii) Email from the defendants dated 24 March 2025.
(iv) Email from the defendants dated 14 January 2025.
(v) Email from the defendants dated 15 January 2025.
(vi) Email from the defendants dated 20 January 2025.
(vii) Email from the defendants dated 26 January 2025.
(viii) Email from the defendants dated 17 December 2024.
(ix) On 19 February 2025 the Plaintiff was contacted by Senior Constable Williamson from Hornsby Police.
10 The Defendants breached the trust, misrepresented the intent for delaying the finalisation of contract and perpetrated deceit in not completing the agreement dated 6 October 2017.
Particulars
(i) As contained in paragraphs 7, 8 and 9 above.
(ii) Defence, file and served by the Defendants 4 March 2025.
(iii) Email to the Defendants 21 January 2025.
11 The Plaintiff has suffered financial loss due to the [Defendant’s] wilful default of agreement and seeks payment of $97,030.00 plus interest that gave rise to the agreement dated 6 October 2017.
Particulars
(i) Agreement dated 6 October 2017.”
The plaintiff had included much of the above in bold and underlined, so as to indicate that they were insertions. It is not necessary for current purposes that that formatting be replicated.
On 28 April 2025, the defendants filed a notice of motion in the Local Court; the principal relief sought was the summary dismissal of the plaintiff’s Local Court proceedings pursuant to UCPR r 13.4.
On 11 November 2025, the application made in the defendants’ notice of motion was heard by the primary Judge, who summarily dismissed the plaintiff’s claim.
In these proceedings, the plaintiff seeks leave to appeal from that decision. The appeal was brought on four grounds, which were set out as follows:
“1 GROUND 1
Procedural fairness
Her Honour did not admit into evidence the plaintiff’s affidavit evidence and written submissions, did not have an open mind, showed disdain towards the plaintiff, decided the interlocutory proceedings other than on its own legal and factual merits and cumulatively was so committed to dismiss the plaintiff’s proceedings acted for the defendants and demonstrated an apprehension of bias. Failure to afford procedural fairness constituted an error of law.
2 GROUND 2
Misdirection
Her Honour erred in misdirecting herself in making findings of fact relating to the Limitations Act 1969 Act and the enforceability of the defendant’s written agreement between the defendants and plaintiff, the two issues were not in dispute between the defendants and plaintiff. The misdirection constituted an error of law.
3 GROUND 3
Limitation Act 1969 Act
Her Honour erred in the interpretation of the provision of the Limitation Act 1969 Act and in doing so failed to apply the law namely s.14(1) and s.55 of the Act to the evidence that was before the Court when deciding the plaintiff’s statement of claim was statute barred and the foundation for dismissing the whole of proceedings. The misinterpretation of the Act constituted [an] error of law.
4 GROUND 4
Written agreement
Her Honour erred in finding the defendants written agreement between the defendants and the plaintiff was unenforceable despite defence pleadings the defendants commenced the agreement and were willing to complete the agreement before the defendants repudiated the agreement. The failure to provide reasons constituted an error of law.”
It is well-established that an order summarily dismissing proceedings pursuant to UCPR r 13.4 is interlocutory: Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 at 11; McGinn v Cranbrook School [2016] NSWCA 226 at [9] and [20].
This being the case, the plaintiff requires leave to appeal from the primary Judge’s decision: s 40(2)(a) Local Court Act. This is the case even if the grounds of appeal are confined to questions of law: Nostro Claimco Pty Ltd v Titus Tekform Pty Ltd [2026] NSWSC 445 at [19].
The defendants raised a threshold issue regarding the competence of the proceedings.
Pursuant to UCPR r 50.3(1), a summons commencing an appeal from the Local Court must be filed within 28 days of the “material date”. While the rule permitted the primary Judge to extend this time, no such extension was sought or granted in the present case. The term “material date” is relevantly defined in UCPR r 50.2 as the date on which the “judgment, order, opinion, direction or determination” is pronounced or given.
The orders from which the plaintiff seeks leave to appeal were made by the primary Judge in open court on 11 November 2025. Accordingly, this is the material date, and the plaintiff was required to have filed any application for leave to appeal from those orders by 9 December 2025. The current proceedings were commenced on 11 December 2025, two days out of time.
The defendants said that in these circumstances the plaintiff has not properly engaged this Court’s jurisdiction and that the proceedings should, therefore, be dismissed as incompetent. I disagree.
This Court has power to extend the time within which an application for leave to appeal from a decision of the Local Court may be brought: UCPR r 50.3(1)(c). The plaintiff has not sought leave to amend his summons to include an application for such extension, as is required by UCPR r 50.3(2). Nevertheless, I consider this to be an irregularity of the type contemplated by s 63 of the Civil Procedure Act 2005 (NSW), which does not invalidate the proceedings.
The plaintiff has invited the Court in his summons to make “such further orders as the court deems appropriate”. In addition, through his own notice of motion dated 2 March 2026, the plaintiff has expressly sought an extension of the time within which to bring his application for leave to appeal from the decision of the primary Judge.
I am satisfied that it is appropriate to extend the time within which the plaintiff was able to bring his application for leave to appeal to 11 December 2025. In reaching this view, I have had particular regard to the following facts:
The plaintiff is a self-represented litigant.
The plaintiff did file an application seeking a variation of the orders made by the primary Judge in the District Court. That application was filed on 24 November 2025. Although filed in the wrong court, that application was filed within time.
The plaintiff’s District Court application was served on the solicitor for the defendants on 27 November 2025. The defendants have, accordingly, been aware notice of the plaintiff’s intention to seek leave to appeal from the orders of the primary Judge since that time.
The defendants have, quite properly, conceded that they will suffer no prejudice if I extend the time within which the plaintiff could bring his application for leave to appeal in this Court.
To obtain leave to appeal, an applicant must ordinarily demonstrate that there is an issue of principle, a question of public importance or a clear injustice which is more than merely arguable: see Cheng v Motor Y**acht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] and the cases cited therein. Particular caution must be exercised when considering an application for leave to appeal from an interlocutory decision on a matter of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39. However, it may be accepted that an error in an interlocutory order that effectively determines – with finality – the legal rights of the parties, might more readily be said to give rise to “an injustice which is more than merely arguable”: Massarani v Kriz [2020] NSWCA 252 at [6].
None of the plaintiff’s proposed grounds of appeal raise any issue of principle, or question of public importance. It was said by the plaintiff that – for the reasons articulated in his proposed grounds of appeal – he has suffered a clear injustice which is more than merely arguable.
For reasons which follow, I am satisfied that the plaintiff has established that he has suffered a clear injustice that is more than merely arguable. In these circumstances, he should be granted leave to appeal.
An appropriate starting point is the plaintiff’s complaint that he was denied procedural fairness (proposed ground 1). The question of whether the proceedings before the primary Judge were determined in a manner which was procedurally fair is logically anterior to the question of whether her Honour’s reasons for having made the orders challenged disclose any error: Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [100]. As developed in his written and oral submissions, the plaintiff makes two essential complaints in this regard.
First, he said that the primary Judge did not consider the plaintiff’s affidavit evidence in deciding to summarily dismiss his proceedings. In this respect, the plaintiff said that the primary Judge might be expected to have gone through each of the competing arguments reflected in the parties’ affidavits, but did not.
Secondly, it was suggested by the plaintiff that the primary Judge received – and may have had regard to – submissions prepared on the defendants’ behalf, which were not made available to him.
After a brief exchange between the primary Judge and the parties – during which the nature of the application being made by the defendants and the material relied upon by both parties was canvassed – the following exchange took place:
“HER HONOUR: … So, what you have handed up: notice of motion 28 April, defence four March, amended statement of claim 10 April, Nairn affidavit 27 February, Young affidavit 17 March, Nairn affidavit 28 April, Young affidavit 19 May, Nairn affidavit 28 May, Young affidavit six November.
[KEEVERS]: Yes, your Honour. That covers the field for all the material save for the written submissions that I have also now handed up.
HER HONOUR: Right, thank you. Is there anything in addition to your written submissions you wish to say?
[KEEVERS]: Not in-chief, your Honour, no.
HER HONOUR: Reserving for in reply?
[KEEVERS]: Yes, your Honour.
HER HONOUR: Right. Now, Mr Young; you have heard what I have. It includes your affidavits. What would you like to say as to the applicant’s notice of motion?”
Thereafter, the plaintiff commenced making submissions in relation to the relief then being sought by the defendants.
In this Court, the plaintiff observed, correctly, that the primary Judge did not refer expressly to the fact that his affidavits were to be “taken as read”. He went on to note that nothing in the reasons of the primary Judge indicates that her Honour had considered his evidence.
While it is true that the primary Judge did not expressly refer to any of the plaintiff’s affidavits as having been “read” on the application, on a fair reading of the transcript it is plain that her Honour treated all of the material she had identified in the above extract as having been placed before her by the parties in connection with the determination of the defendants’ application. In no sense was the plaintiff denied an opportunity to bring forward any evidence he wished to in opposing that application.
The limited extent to which the primary Judge referred to the plaintiff’s affidavit evidence can be largely explained by the nature of the assessment her Honour was required to make of his claim in the context of the defendants’ application for summary dismissal. I will return to this when addressing proposed grounds 2 – 4. For present purposes, I am not satisfied that the primary Judge’s failure to have addressed in detail that evidence discloses any denial of procedural fairness.
The plaintiff’s second procedural fairness argument arises out of the following exchanges, which took place early in the proceedings before the primary Judge:
“HER HONOUR: Then there are written submissions from yourself?
[KEEVERS]: Yes, your Honour.
HER HONOUR: Okay. What are you asking, Mr Keeves?
…
[Discussion about the documents being relied on by the parties]
…
HER HONOUR: Has your client filed anything further?
[KEEVERS]: Nothing further except for my written submissions, your Honour. I don’t know whether they have made their way to your Honour.
HER HONOUR: I’ve got them. I am just, at this stage, trying to sort out what I need to be aware of for the application.
PLAINTIFF: Your Honour, I haven’t seen the defendants’ written submissions, they weren’t on the court portal this morning.
[KEEVERS]: I have a spare copy for my friend.
…
[The matter was then stood in the list so that the primary Judge could deal with unrelated criminal matters]
…
HER HONOUR: Firstly, the written submission; I don’t know if I am missing something. It is only a three-page document that starts with written submissions, then there is a notice, then there is a second page of notice. Is there something else?
[KEEVERS]: Your Honour, I have written submissions prepared dated today. I am not sure if they have made their way onto your Honour’s file, but I might hand them up now.
HER HONOUR: Thank you.
[KEEVERS]: It is a four-page document, your Honour.
HER HONOUR: you have seen that, Mr Young?
PLAINTIFF: The one you gave me?
[KEEVERS]: Yes.
PLAINTIFF: Yes, I have, your Honour.
HER HONOUR: Thank you.
[KEEVERS]: I apologise for the confusion, your Honour.
HER HONOUR: That’s fine. I will have a good look at those…”
The plaintiff pointed to: (1) the defendants’ claim that their submissions had been filed; and (2) the inconsistency between the primary Judge’s reference to “a three-page document” on file and the “four-page document” which comprised the written submissions provided to him by the defendants’ counsel; and said that this indicates that the primary Judge had been given an additional set of submissions to that which had been shared with him. I do not accept this.
Whilst there was clearly some confusion, nothing in the portions of the transcript extracted above indicates that the defendants provided to the primary Judge a different set of submissions to that which had been provided to the plaintiff. In these circumstances, I am not satisfied that the plaintiff was deprived of an opportunity to respond to any of the submissions relied on by the defendants in support of their application before the primary Judge.
For the above reasons, I am not satisfied that the plaintiff was denied procedural fairness in relation to the proceedings before the primary Judge.
The test that was to be applied by the primary Judge when considering the defendants’ application for summary dismissal of the plaintiff’s claim is well recognised. To dismiss the claim, the primary Judge had to be satisfied that – taken at its highest – it was "manifestly groundless" or "so obviously untenable that it cannot succeed". If there was an arguable issue to be tried, summary dismissal should have been refused: General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69; Batistatos v Roads and Traffic Authority of New South Wales; (2006) 226 CLR 256; [2006] HCA 27 at [46]; Shaw v State of New South Wales [2012] NSWCA 102.
As one of the defendants’ principal arguments before the primary Judge was that the plaintiff’s claim could not succeed because it was statute barred by s 14 of the Limitation Act 1969 (NSW), the following observations in Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55 were also important to her Honour’s consideration of that issue:
"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident to the question."
“As to no reasonable cause of action, that is also referred to in rule 14.28. Unlike applications to strike out proceedings, where the Court is concerned solely with the form of the pleading and where if the application is successful, leave may be granted to amend, to plead in proper form. In applications under this rule, the Court is not limited to a consideration of the form of the pleadings but receives evidence to determine whether the plaintiff’s claim has any prospect of success. If it has, but the claim is not adequately expressed in the pleading, the Court should not dismiss the proceedings or the particular claim but should grant leave to the plaintiff to file an amended statement of claim. The test has been referred to in General Steel Industries Inc v Commissioner for Railways (NSW) (1964).
This has effectively already been attempted with the current case of Young v Christopher Cowley, CKJ Building Services Australia Pty Ltd. It was the original statement of claim that has been amended. In my opinion, that amended statement of claim is still seriously flawed. I have looked at the fact that the proceedings, at best, could go back to 2018, at worst, 2017. I note in Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514, the majority described it as undesirable that limitation questions be decided in interlocutory proceedings except in the clearest of cases. In my opinion, It is not only that the limitation period has exceeded, but that there are problems in the proceedings as they currently stand.”
The reasons of the primary Judge were given ex tempore, in the context of what the transcript suggests was a busy list. In reviewing those reasons, I note that they were intended to inform and should “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Dougan v Mann [2025] NSWCA 109 at [47], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6.
Viewed in this light, I am satisfied that the primary Judge sought to apply the correct test in determining the defendants’ summary dismissal application.
By ground 4, the plaintiff contends that the primary Judge erred in finding that the “agreement” signed by the parties in October 2017 was not enforceable.
After exploring “the differences between a contract and agreement”, the primary Judge concluded that the document signed by the plaintiff and the first defendant in October 2017 did not give rise to an enforceable contract. In my view, this was an error.
When the plaintiff and the first defendant came to sign that document, the plaintiff was either entitled to recover $97,030 from one or other of the defendants or was claiming that he had such an entitlement. On its face, the October document reflects an offer from the first or second defendant to compromise that entitlement or resolve that claim. The compromise of an actual or asserted entitlement to money owed, in this instance, the plaintiff’s asserted entitlement to be paid for work performed, was clearly good consideration: Butler v Fairclough (1917) 23 CLR 78 at 96 (Isaacs J). By signing the October 2017 document, the plaintiff must be taken to have accepted that offer.
I will return to consider the nature of the obligation imposed upon the defendants (if any) by the October 2017 document when addressing the limitation issues which are raised by grounds 2 and 3. For present purposes, it is sufficient to conclude that the execution of that document by the parties did give rise to a binding contract. In these circumstances, the plaintiff has made out the error identified in ground 4. However, this error will only undermine the orders made by the primary Judge if her Honour also erred in holding that the plaintiff’s claim was statute barred. This error is dealt with collectively in grounds 2 and 3.
14 General
(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims—
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,
(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,
(c) a cause of action to enforce a recognizance,
(d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
(2) This section does not apply to—
(a) a cause of action to which section 19 applies, or
(b) a cause of action for contribution to which section 26 applies.
(3) For the purposes of paragraph (d) of subsection (1), enactment includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.
It is well-settled that time, for the purposes of the Limitation Act, runs from the date on which a contract is breached: see Gould v Johnson (1702) 2 Salk 422; 91 ER 367; Gardiner v National Australia Bank Ltd; National Australia Bank Ltd v Gardiner [2023] NSWSC 45 at [350]. To isolate the point in time at which a breach of contract occurs, it is first necessary to identify the obligation or obligations imposed by the contract that a party is said to have breached.
There may be some debate about how the October 2017 document is to be construed. The plaintiff asserts that, properly construed, that document imposed an obligation on one or other of the defendants to transfer ownership of the Ford Ranger to him. An alternative view is that the plaintiff’s obligation to release the defendants from their actual or asserted liability to him was conditional upon them transferring ownership of the Ford Ranger to him but that they were under no obligation to do so. In my view, it is unnecessary to resolve this issue in the context of these proceedings because, on either view, the plaintiff’s claim was statute barred when he commenced his proceedings in the Local Court.
If the October 2017 document imposed a contractual obligation on one or both defendants to transfer ownership of the Ford Ranger to the plaintiff, it did not specify any date by which this was to occur. The “ordinary prima-facie rule is that when a contract provides for the doing of an act and there is no express provision as to time the law implies that it must be done within a reasonable time”: York Air Conditioning and Refrigeration (A/asia*) Pty Ltd v Commonwealth of Australia* (1949) 80 CLR 11 at 62; [1949] HCA 23. What is a reasonable time is a question of fact to be determined in the light of all the circumstances.
Accepting that there may be some debate about how long the defendants might reasonably have required to perform any such obligation in late 2017, the latest date for performance would, on any view, have been significantly more than six years prior to 3 February 2025. As such, any case based on the failure by the defendants to transfer legal ownership of the Ford Ranger to the plaintiff in performance of an obligation arising out of the October 2017 document would – subject to one qualification to which I will return – have been statute barred by 3 February 2025.
If the October 2017 document did not impose a contractual obligation on one or both of the defendants to transfer ownership of the Ford Ranger to the plaintiff, but instead made that a condition of the plaintiff releasing them from the claim he was at that time making, the relevant cause of action will be that which gave rise to the $97,030 claim. If the plaintiff was legally entitled to recover the $97,030 as at October 2017, whatever cause of action had given rise to that entitlement must have already arisen by that time. Until such time as the condition required to enliven the release was satisfied, the plaintiff’s then existing cause of action remained available. For the purposes of the Limitation Act, time on that cause of action continued to run. The plaintiff’s case in the Local Court was premised upon the defendants’ failure to have satisfied the relevant condition. As more than 6 years have passed since whatever cause of action might have given rise to claim being made by the plaintiff in October 2017, that claim will also – subject to one relevant exception – be statute barred.
The exception to which I refer in the above two paragraphs is that arising under s 54 of the Limitation Act, which relevantly provides that:
54 Confirmation
(1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.
(2) For the purposes of this section—
(a) a person confirms a cause of action if, but only if, the person—
(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or
(ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made,
(b) a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money, and
(c) a confirmation of a cause of action to recover income falling due at any time operates also as a confirmation of a cause of action to recover income falling due at a later time on the same account.
...
(4) An acknowledgment for the purposes of this section must be in writing and signed by the maker.
A defence under the Limitation Act must be pleaded: Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 at [9]-[10], [40] and [78]. No such defence was raised by the defendants in answer to the statement of claim originally filed by the plaintiff in the Local Court. The defendants brought their application for summary dismissal before filing a defence to his amended statement of claim. As a result, no Limitation Act defence was ever pleaded by the defendants. The first time the argument was formally advanced was in support of the defendants’ application for summary dismissal.
I am not satisfied that the plaintiff was given an adequate chance to consider the defendants’ L**imitation Act defence and, if available, rely on any confirmation or acknowledgement of the relevant cause of action by the defendants, within the relevant limitation period but late enough to have meant that the claim he commenced in the Local Court on 3 February 2025 was brought within time.
The defendants did provide the Ford Ranger to the plaintiff in early 2018. He retained possession of that vehicle – although not legal ownership of it – until at least late 2024. Throughout this period, the plaintiff continued to work closely with the defendants. The first defendant’s October 2024 email expressly refers to the need to transfer ownership of the Ford Ranger to the plaintiff. While that email is itself likely to have been sent after the expiry of any relevant limitation period, it points to at least a reasonable possibility of similar sentiments having been expressed in some written communication – capable of being interpreted as an acknowledgement of the type contemplated by s 54 of the Limitation Act – sent within time.
In my view, it was premature for the primary Judge to have summarily dismissed the plaintiff’s claim on the basis that “the limitation period has exceeded” before any limitation defence had been pleaded or the potential availability of any answer to such a defence – including through s 54 of the Limitation Act – had been explored by the plaintiff. This view is reinforced by the fact that the plaintiff has at all relevant times represented himself in these proceedings. As such, the considerations summarised in Caroline Chamoun v Gemi Nominees Pty Limited [2025] NSWSC 1300 at [35]-[40] were relevant to the determination of the defendants’ application for summary dismissal.
The plaintiff has made out the error identified in grounds 2 and 3.
In light of the conclusions reached above, it is appropriate that the orders made by the primary Judge on 11 November 2025 be set aside.
One aspect of the primary Judge’s reasoning which I have not addressed above is her observation that:
“…It is clear to me that it is problematic and/or unknown as to whether the terms of the agreement are capable of being tested. I note in [the plaintiff’s] submissions, my attention was brought to the fact that he has stated he has provided all documents to which he has access. It is still unclear as to whether there is a case that can be made and therefore a case that can be responded to by the defendants.
… There are so many flaws in my opinion, in the current amended statement of claim.”
In this Court, the defendants contended that the inadequacy of the plaintiff’s amended statement of claim, when combined with his claim to have provided access to all relevant information, provides a standalone reason for summary dismissing the Local Court proceedings. While I disagree with this proposition, I do share the primary Judge’s view that – in its current form – the plaintiff’s amended statement of claim fails to properly identify the cause of action on which he relies. A clear articulation of his claim is needed; not only to enable the defendants to understand the case that they are being asked to meet but also to allow any limitations questions to be answered with precision and in their appropriate context.
The most efficient course is for me to deal with the inadequacy of the plaintiff’s pleading before remitting the matter to the Local Court for determination. As I am of the view that the plaintiff’s amended statement of claim does not adequately disclose the cause of action, it should be struck out pursuant to UCPR r 14.28. However, the plaintiff should be given a further opportunity to plead the claim.
Finally, and for completeness, I note that the defendants contended that these proceedings should be dismissed as an abuse of process. Although touched on in their written submissions, this aspect of the defendants’ case was not developed in oral submissions.
In support of this contention, the defendants pointed to the fact that shortly before bringing this appeal the plaintiff commenced fresh proceedings in the Local Court against the first defendant, in which he makes what was said to be an identical claim to that which was dismissed by the primary Judge. On 17 February 2026, those fresh Local Court proceedings were stayed pending the outcome of this appeal.
While the defendants correctly observed that simultaneously prosecuting identical claims in different courts is capable of amounting to an abuse of process, I am not satisfied that this is an appropriate basis to dismiss the plaintiff’s appeal.
There is a subtle, but important, difference between the claim made in this Court and that which is said to have been advanced through the fresh Local Court proceedings. Whatever view might be taken as to the appropriateness of having commenced the fresh Local Court proceedings seeking the same relief as had been sought in the proceedings before the primary Judge, the appeal brought by the plaintiff in this Court was an appropriate response to the orders made by the primary Judge with which he was aggrieved. Any abuse of process that might arise in the event that the plaintiff continues to prosecute the fresh Local Court proceedings after the orders made by the primary Judge on 11 November 2025 have been set aside is a matter best addressed by the Local Court if and when that occurs.
For the reasons given above, I make the following orders:
Grant leave to the plaintiff to bring his application for leave to appeal from the decision of the primary Judge out of time.
Grant leave to the plaintiff to appeal from the decision of the primary Judge.
Set aside the orders made by the primary Judge on 11 November 2025 and, in lieu thereof, order that:
(a) The amended statement of claim filed 10 April 2025 is struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 14.28. (b) Grant leave to the plaintiff to file a further amended statement of claim by 9 June 2026. (c) The proceedings be remitted to the Local Court for determination.
(a) That application should include submissions of not more than 2 pages and any necessary evidence; (b) The other party may serve and provide to my Associate responsive submissions of not more than 2 pages and any necessary evidence by 4pm 2 June 2026; and (c) I will determine the question of costs on the papers.
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Young
Cowley
[2006] HCA 27
[1964] HCA 69
[1996] HCA 6
[2026] NSWSC 445
(1981) 148 CLR 170
(2006) 226 CLR 256
(1917) 23 CLR 78
(2022) 108 NSWLR 342
(1964) 112 CLR 125
(1996) 185 CLR 259
(2017) 94 NSWLR 518
(2021) 270 CLR 450
(1992) 175 CLR 514
(1992) 30 NSWLR 1
(1949) 80 CLR 11