Summary Judgment in Victoria: The No Real Prospect of Success Test Under the Civil Procedure Act 

Yes. A Victorian court may give summary judgment where a claim, defence or counterclaim has no real prospect of success. Section 64 of the Civil Procedure Act 2010 (Vic) nevertheless allows the court to require a trial in specified circumstances. 

For business owners and directors pursuing an unpaid debt or defending a commercial claim, the cost of proceeding to trial may be difficult to justify where the opposing case lacks substance. Summary judgment in Victoria under the Civil Procedure Act provides a procedure for seeking an earlier decision, but a strong case alone does not establish entitlement to judgment. 

A plaintiff may apply under section 61 to challenge a defence; a defendant may apply under section 62 to challenge a claim. In defended debt claims, the evidence in support must substantiate the debt and address the defence raised. Order 22 of the 2025 Rules governs Supreme Court applications. The practical question is whether the available evidence supports early judgment or leaves issues that require a trial. 

What is the Legal Test for Summary Judgment in Victoria Under the Civil Procedure Act? 

Summary judgment in Victoria under the Civil Procedure Act is governed by Part 4.4 of the Civil Procedure Act 2010 (Vic), particularly sections 60–64. Section 63 permits judgment without a trial where a claim, defence or counterclaim, or part of it, has no real prospect of success, subject to section 64. 

A plaintiff application under section 61 challenges the defendant’s defence, or part of it. A defendant application under section 62 challenges the plaintiff’s claim, or part of it. Section 60 extends these provisions to parties bringing or defending counterclaims. The procedure can therefore resolve a discrete part of a commercial dispute without necessarily ending the entire proceeding. 

In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, the Victorian Court of Appeal explained at [35] that the opposing party must have a real, rather than fanciful, chance of success. The no real prospect of success test under section 63 must be applied in its own terms. 

The Court distinguished the older, more restrictive approach associated with General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, commonly expressed as whether a case was hopeless or bound to fail. Lysaght confirmed that section 63 is more liberal to some degree. Nevertheless, summary termination requires caution and should occur only where no real question requires trial. 

Section 64 allows a trial despite the test being satisfied where summary disposal would not serve the interests of justice, or the dispute’s nature requires a full hearing on the merits. Establishing the section 63 threshold therefore does not automatically entitle an applicant to judgment. 

In the Supreme Court, Order 22 of the 2025 Rules, formally the Supreme Court (General Civil Procedure) Rules 2025 (Vic), supplies the procedure. Part 2 governs plaintiff applications; Part 3 governs defendant applications. Rule 22.04 requires a plaintiff’s summons to be supported by an affidavit verifying the relevant claim facts and stating the prescribed belief about the defence. Under rule 22.18, a defendant relying on affidavit evidence in support must file that affidavit with the summons. 

How Do Victorian Courts Decide Whether to Grant Summary Judgment? 

Does the opposing case have a real prospect of success? 

The court considers whether the claim or defence has a real prospect of succeeding. It does not simply decide which party presents the more persuasive case on the application. Under the no real prospect of success test in section 63, a case may be weak yet still warrant a trial. As Lysaght explains, the power requires caution: summary judgment should not be granted unless it is clear that no real question remains to be tried. 

What evidence must a creditor provide in a defended debt claim? 

In defended debt claims, the creditor should identify the contractual obligation, establish when payment became due, and explain the amount outstanding. Depending on the dispute, relevant material may include signed agreements, invoices, delivery records, correspondence, and payment reconciliations. The evidence in support should also confront any asserted variation, defective performance, or set-off affecting the claim. 

For a plaintiff application under section 61, rule 22.04 requires an affidavit verifying the relevant facts and stating the deponent’s belief that the defence has no real prospect of success, either entirely or except as to the amount. An invoice alone may not resolve a dispute about whether the underlying payment obligation arose. 

How should a defendant demonstrate that a trial is necessary? 

A defendant resisting summary judgment should identify the factual or legal basis of the defence and explain why it has a real prospect of success. A general denial gives the court little assistance. Where the defence depends on an agreement to defer payment, for example, the response should identify who made that agreement, when it was made and any supporting communications. 

Under Order 22 of the 2025 Rules, a defendant may oppose a plaintiff’s application by affidavit or otherwise to the court’s satisfaction. Evidence should address the issues that could affect the outcome, rather than merely establish that the parties disagree. 

Can a defendant obtain judgment against the plaintiff? 

Yes. A defendant application under section 62 can seek judgment on all or part of a claim that has no real prospect of success. The application must explain the defect relied on, whether it concerns the legal basis of the claim or the evidence supporting it. Under rule 22.18, any supporting affidavit on which the defendant intends to rely must be filed with the summons. 

When will the court require a trial despite the statutory test? 

Section 64 permits a trial despite the test being satisfied where summary disposal would be contrary to the interests of justice or only a full hearing on the merits is appropriate. A party relying on discretion should explain what needs a full hearing and why. The court’s task extends beyond identifying weaknesses: it must consider whether summary disposal is appropriate in the circumstances. 

What Disputes and Practical Issues Arise in Summary Judgment Applications in Victoria? 

In defended debt claims, the dispute often concerns whether payment became due, rather than whether an invoice was issued. Contractual certification, acceptance of work, variations, and alleged defects can determine whether the creditor has an enforceable entitlement. The evidence in support must connect the amount claimed to the contractual payment mechanism. 

The litigation in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (No 3) [2013] VSC 435 involved competing applications concerning unpaid construction progress claims and a debt allegedly arising from a superintendent’s certificate. It illustrates why a payment dispute requires examination of the contract and certification process, beyond the account balance. 

Payment defaults also arise when enforcing a settlement agreement. Before seeking summary judgment, the creditor must identify the binding settlement obligation and the default, and determine whether enforcement belongs in existing proceedings or requires a fresh claim. 

A defendant’s allegation that it has suffered loss does not, by itself, determine the creditor’s application. The parties must distinguish a set-off that answers the payment claim from a separate counterclaim requiring determination. Defective work, delay, and rectification costs need an identified contractual or legal basis and supporting material. 

Under rule 22.08(2), the Supreme Court may stay enforcement of summary judgment pending trial of an outstanding claim or counterclaim between the parties. Obtaining judgment and obtaining immediate payment are therefore separate considerations. For a business managing cash flow, that distinction can materially affect the value of the application. 

Disagreement about credits, part-payments, interest, or the final account may leave the amount unresolved without necessarily defeating the entire application. Rule 22.10 permits the court, in specified circumstances, to declare liability for a debt and direct how its amount will be ascertained. A creditor should separate genuinely disputed calculations from amounts it can establish, rather than present an unreconciled total. 

Disputes about oral variations, extensions of time to pay, and assurances about enforcement require close attention to contemporaneous records. Emails, meeting notes, and payment conduct may support or contradict the pleaded account. Where a material issue genuinely requires witness examination, an application cannot safely proceed merely on the assumption that the opposing witness will not be believed. 

What Should You Assess Before Pursuing or Defending a Summary Judgment Application? 

Before pursuing summary judgment in Victoria under the Civil Procedure Act, identify precisely what an early judgment would achieve. Resolving liability may leave the amount payable, a counterclaim or enforcement issues outstanding. Assess the likely saving in trial costs against the expense of preparing the application and the risk of an adverse costs order if it fails. 

The evidence in support should follow the legal elements of the claim or defence. Assemble the executed contract, variations, payment records, and relevant correspondence into a clear chronology. Identify who can verify each material fact and distinguish personal knowledge from information obtained from others. Address documents that qualify or contradict the proposed case before filing; an unexplained inconsistency can undermine the contention that no real question requires trial. 

For a creditor, reconcile the amount sought and identify any part that can be determined separately. For a defendant seeking early judgment, isolate the defect said to prevent the claim succeeding and consider whether an amendment could cure it. A successful challenge to the current pleading may not necessarily end the dispute. 

When resisting an application, explain the substance of your claim or defence rather than relying on a request for more time. If further documents or witness evidence are needed, identify them and explain how they could affect the result. Where records are held by a bank, accountant, or another non-party, consider the appropriate procedure for obtaining third-party documents. Any reliance on section 64 should likewise identify why a full hearing is appropriate. 

Settlement discussions should be informed by this assessment. An application is commercially useful when it can resolve a material issue at proportionate cost; its value should not be assumed merely because it places pressure on the other party. 

Frequently Asked Questions 

Should You Pursue or Defend a Summary Judgment Application in Victoria? 

Summary judgment in Victoria under the Civil Procedure Act can resolve a claim or defence without the cost of a full trial, but the application must establish that the opposing case has no real prospect of success. The court retains discretion under section 64, and judgment may leave questions about the amount payable, counterclaims, or enforcement unresolved. 

For business owners and directors, the decision should turn on the evidence, the issues capable of early determination and the commercial benefit. Pentana Stanton’s commercial litigation team can assess the merits of pursuing or resisting an application, identify evidentiary gaps and advise on the available options. Book a consultation to discuss your claim or defence and whether summary judgment is an appropriate next step. 

This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.