Winterkorn Legal Group Successfully Defends Summary Judgment Application and Secures Indemnity Costs Order

In February 2024, Winterkorn Legal Group appeared in the New South Wales Supreme Court for a hearing of three respective applications:

• application for summary judgment;
• application to file a cross-claim;
• application to amend defence.

Our client succeeded on all three applications and the court awarded our client's costs be paid by the other party on an indemnity basis. 

In this article, we:

• explain what a summary judgment application is;
• set out briefly the key legal considerations in a summary judgment application; and
• provide a summary of our client’s recent case.

What is a summary judgment application?

A summary judgment application is a step available to a party in a proceeding that asks the court to dispose of a case summarily before a final hearing. 

The general principles

The law is clear that a party will not be denied a contested merits hearing (that is, a final hearing) unless the absence of a cause of action or defence is clearly demonstrated.

The criteria for satisfaction that there is no real cause of action or defence has been variously described as one where the allegedly contentious matter is:

• “so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, “so manifestly faulty that it does not admit of argument”;
• one which “the court is satisfied cannot succeed”;
• one where “under no possibility can there be a good cause of action”; or
• one which “would involve useless expense”.[1]

These general principles are often summarised in the proposition that summary judgment is not appropriate if the defence raises a triable issue.  This includes an issue that is likely to turn on questions of credit and applies even where the court may have a strong preliminary view as to the probable result. 

Our client’s recent case

Our client is a tenant of a Motel located in New South Wales. 

Our client’s landlord has commenced proceedings in the New South Wales Supreme Court – alleging, broadly, various breaches of the lease in place for the Motel.

Each allegation made by the landlord is denied.

In February 2024, as the matter was progressing toward a final hearing, the landlord (plaintiff) filed a Notice of Motion seeking Summary Judgment.

Put simply, we argued the landlord had established no basis for summary judgment, let alone satisfy the Court that the Defence (or Amended Defence) is manifestly groundless and so obviously untenable that it cannot possibly succeed. 

Further, it was put to the Judge that our client’s defence (which manifestly rejects the allegations raised in the claim) raises reasonable arguments and serious conflicts as to matters of fact (that may turn on questions of credit) and law that ought to be determined in the usual course. 

The Judge accepted our Submissions and ordered, relevantly, the landlord’s application for summary judgment to be dismissed. A link to the decision can be found here.

Costs

The next question was who had to pay for the legal costs of the respective applications.

The question of costs is a relatively complex issue in itself (which we deal with in another Blog Post on our website).

Here, we argued that an indemnity costs order was appropriate because:

• the landlord has adduced extensive evidence and raised very serious allegations in submissions – thereby making it impossible for the court to conclude that summary judgment could be entered; and
• the landlord was put on notice that his summary judgment application was “groundless”, but even so, he still pursued his entirely untenable claim for summary judgment. This is despite the onus falling on him to make out his case and the obligations imposed on all parties by the Civil Procedure Act, in relation to the just, quick and cheap resolution of the real issues in the proceedings.

In response, the landlord’s legal team contended that the landlord had unsuccessfully advanced his case in support of his motion on the basis of the orders for possession to which he believed he was entitled. It followed that our clients were entitled to a costs order on the ordinary basis. 

Ultimately, the judge accepted our client’s position and ordered that it be paid his costs on an indemnity basis.

Do you need help with a commercial dispute?

If you have any questions about a commercial dispute, we are here to help.  Reach out to our experienced team on 1300 660 884 for a free consultation. 

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[1]General Steel Industries Inc v Cmr for Railways (NSW) [1965] ALR 636 at [129]; Westpac Banking Corporation v Lahood [2011]NSWSC 1057 [15]; Spencer v Commonwealth [2010] HCA 28 at [24] (must be clear that there is no real question); Cosmos EC Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]–[38] ; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.