O’Shea & Partners Lawyers

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Recent Legal Developments

Court of Appeal confirms test for summary judgment where defence lacking prospects

A Queensland Court of Appeal recently found in favour of the Bank in a case where the borrowers sought to argue that the Bank had acted unconscionably in taking mortgages and guarantees from the borrowers. The borrowers asserted that in circumstances where they were elderly, lacking in knowledge of the legal system, and with English not being their first language, the bank ought not to have taken the mortgages and guarantees without first taking further steps to ensure the borrowers had a more fulsome understanding of the transactions involved.

The appeal was against the granting of Summary Judgment in favour of the Bank in the District Court. In Queensland, a Court may give summary judgment to a plaintiff when the defendant has “no real prospect of successfully defending all or a part of the plaintiff’s claim” and there is “no need for a trial of the claim or part of the claim”.

The Court of Appeal confirmed the test to be applied is as follows, which is based on the principles in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, Bolton Properties P/L v J K Investments (Australia) P/L [2009] 2 Qd R 202; [2009] QCA 135, Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 and Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 24:

“…summary judgment for a plaintiff should be granted where it is clear that any available defence has no prospects of success, in the sense that there is no real question to be tried, or because a defence would be bound to fail. The standard against which the defence must be measured is whether it has a real, as opposed to fanciful prospect of success…

…the court may draw inferences from the available material and surrounding circumstances.

Our lawyers are very capable and experienced litigators. If you wish to discuss a claim you have, or a claim that is being made against you, please contact us to discuss how we can help.

Tom O’Shea