1Where a defendant raises a sham defence to written agreements, the defendant need not have all admissible evidence available at the summary judgment stage; it suffices to point to existing sworn evidence and identify further sources from which supporting evidence will be obtainable, provided the prospect of success is real rather than fanciful.
2The reasoning in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd — that a party who executes a written agreement is bound by it absent non est factum, rectification or vitiating factors — does not foreclose a sham defence where there is evidence of a subjective mutual intention that the documents would not have legal effect, as the sham doctrine is a recognised exception to the objective theory of contract.
3On an interlocutory summary judgment application, the court is not confined to evidence strictly relevant to the pleaded issues or admissible at trial; evidence bearing on the assessment of the defendant's real prospects of success may be received, and UCPR r 165(2) does not prevent this.
