There are many articles written about how to run an application for summary judgment. But here’s a case summary on what NOT to do.

In Murray Laws Pty Ltd v Josephine Lucille Reeves the plaintiff (a law firm) filed an application for summary judgment with respect to a legal proceeding that it had brought against a former client for payment of legal fees and for the repayment of alleged loan monies.

With respect to the claim for repayment of loan monies, the defendant opposed the action on the grounds that she was in a personal relationship with the director of the plaintiff and that the funds were given to her as a gift.

With respect to the claim for repayment of legal fees, in reviewing the evidence, His Honour found that the plaintiff had failed to provide appropriate costs disclosure to the defendant in accordance with the Legal Profession Act (Qld) and, as such, it had no legal basis upon which to even commence legal proceeding.

In handing down his decision, Magistrate Sinclair found that the plaintiff’s application for summary judgment must fail because:

1. With respect to the claim for recovery of legal costs, the plaintiff had demonstrated to the court that it had no legal basis for commencing the legal proceeding
   (due to its failure to provide proper costs disclosure to the defendant and its failure to have its costs assessed) and therefore it had no prospect of succeeding in its claim
   against the defendant.
2. With respect to the claim for repayment of the alleged loan:
   1. The director of the plaintiff (not a party to the proceeding) had filed affidavit evidence stating that he had loaned money to the defendant
      (i.e., the funds were loaned by him personally and not by the plaintiff).
   2. The defendant was entitled to argue (at trial) that she gifted the funds by the director of the plaintiff.

At paragraph [51] of his decision, the learned magistrate said with respect to the claim for recovery of legal costs:

‘The Plaintiff has shown that there is no need for trial at this stage in relation to the legal costs: not because it must certainly win but because it cannot win.’

In short, the application for summary judgement failed because the court was convinced that the plaintiff had no prospects of success and because the defendant had an arguable case to run at trial.

This case is a clear reminder of the importance of reviewing both the adequacy of the plaintiff’s claim and the strength of the defendant’s defence before advising a client to file an application for summary judgement. It may seem trite to say, but the small stuff matters.

Or, as we say here at AXIA Litigation Lawyers – Every Move Matters!!