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Summary judgment

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In the matter of Green Alliance Pty Limited (receiver and manager appointed) [2012] NSWSC 1224. Black J.

12 As noted above, MDM seeks an order that Green Alliance's defence be struck out and summary judgment entered under UCPR rule 13.1.

That rule relevantly provides that, if there is evidence on which the claim or part of the claim is based and there is evidence given by a responsible person that, in the person's belief, the defendant has no defence to the claim or part of the claim, the Court may give such judgment for the plaintiff or make such order as the case requires.

The principles applicable to a summary judgment application are well established. Before a court will give summary judgment, it is necessary to reach a high level of satisfaction that the order should be made, and the power to order summary judgment should be sparingly employed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, where the plurality of the High Court observed at [57]: 

"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 

That formulation has repeatedly been adopted, including in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]; Westpac Banking Corporation v Lahood [2011] NSWSC 1057 at [15]; and Shaw v New South Wales [2012] NSWCA 102. 

13 In exercising the Court's power to strike out the defence under UCPR r 13.1, the Court must also give effect to the overriding purpose stated in s 56(1) of the Civil Procedure Act, namely, to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

Section 58(1) requires the Court to act in accordance with the dictates of justice and s 58(2) requires that the overriding purpose specified in s 56(1) be taken into account: Shaw v New South Wales at [128]ff.

Similar factors are relevant to a decision whether to order that the whole or any part of the pleading be struck out under r 14.28 if, relevantly, it discloses no reasonable cause of action or defence or has a tendency to cause prejudice, embarrassment or delay in the proceedings.

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