The test for summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) is whether the respondent has a 'real' as opposed to 'fanciful' chance of success, applied by reference to its own language without paraphrase or comparison with the General Steel 'hopeless' or 'bound to fail' test. The test is to some degree more liberal than General Steel, permitting the possibility that there may be cases where a respondent's case is not hopeless or bound to fail but nonetheless lacks a real prospect of success. The power must still be exercised with caution and not unless it is clear there is no real question to be tried. The statement in Karam v Palmone Shoes Pty Ltd that s 63 did not establish a new or different test is incorrect.
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