How to apply for summary judgment in NSW civil proceedings
Under UCPR 13.1 (plaintiff) and 13.4 (defendant/strike out), a NSW court may give summary judgment where there is no real question to be tried or no reasonable cause of action. The test applies the Spencer v Commonwealth threshold — reasonable prospects. File a Notice of Motion with supporting affidavit and evidence.
The framework
Civil Procedure Act 2005 (NSW); Uniform Civil Procedure Rules 2005 (NSW) — Rules 13.1, 13.4, 14.28; principles from Spencer v Commonwealth (2010) 241 CLR 118.
The process
Identify the basis
UCPR 13.1 allows a plaintiff to seek summary judgment where the defendant has no defence or no defence other than as to damages. UCPR 13.4 and 14.28 allow defendants to strike out proceedings.
Apply the Spencer threshold
After Spencer v Commonwealth, courts grant summary disposal only where the claim has no reasonable prospect of success. Fact-heavy cases and novel legal questions are rarely suitable.
Review pleadings closely
Confirm pleadings are closed (Statement of Claim served, Defence filed). Summary judgment can also run before Defence for clear liquidated claims.
Prepare the Notice of Motion
Use UCPR Form 40. State the orders sought, the rule invoked (13.1, 13.4, 14.28), and fix a short return date.
Prepare affidavit evidence
Attach the pleadings, key documents, deposed evidence, and expert reports (if applicable). The affidavit must establish facts not reasonably triable.
Written submissions
Prepare submissions applying UCPR 13 and the Spencer threshold. Address the pleaded defences and why they cannot succeed.
File and serve
File the motion and affidavit via the NSW Online Registry. Serve the defendant with at least 7 days' notice (longer for complex motions) under UCPR 18.4.
Defendant responds
The defendant may file affidavits and submissions demonstrating triable issues. Cross-examination on affidavits is rare but permitted with leave.
Hearing of the motion
Summary motions are heard by an Associate Judge or Judge. Oral argument is typically short (1–2 hours). Where there is a genuine factual dispute, the motion will usually fail.
Orders and costs
Successful motions end proceedings with costs against the losing party (UCPR 42.1). Unsuccessful plaintiffs who file weak motions may face indemnity costs.
Common mistakes
- Filing summary judgment on fact-heavy cases that do not meet the Spencer threshold
- Inadequate affidavit evidence — submissions are not evidence
- Targeting pleading deficiencies through summary judgment rather than strike out
- Bringing an early motion before pleadings close
- Ignoring indemnity costs risk on unsuccessful motions
Get this process right with Quillio
Quillio can draft the Notice of Motion, structure affidavit evidence, and prepare submissions applying Spencer to the pleaded case. See /practice-areas/litigation-lawyers.
General information only, not legal advice. Summary judgment applications are cost-risky where facts are contested. Engage NSW litigation counsel.
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