The test for summary judgment under UCPR r 292 and r 293 is whether there is a 'real, as opposed to fanciful, prospect of success', not the former General Steel test of whether the case is 'so clearly untenable that it cannot possibly succeed'. The approach of Chesterman J in Gray v Morris, which held the UCPR did not change the summary judgment test, is not correct. For director penalty proceedings under s 222AQA of the ITAA, the defence under s 222AQD(3)(b) that there were no steps the director could have taken requires proof under s 222AQD(5) that the director had reasonable grounds to expect compliance with the agreement; the defence does not avail a director of a hopelessly insolvent company.
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