Under s 82(3)(c) of the Civil Procedure Act 2005 (NSW), a plaintiff seeking an interim payment need only show on the balance of probabilities that they would obtain judgment for substantial damages at trial; the words 'would obtain judgment' do not require certainty or near-certainty of success. The Briginshaw principle applies such that the court must have regard to the gravity of the allegations and seriousness of consequences, but it is not necessarily accurate to describe the required satisfaction as 'toward the top of the flexible scale' in every case. An expert report containing bare conclusions without reasoning is entitled to no weight on an interim payment application.
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