Romeo v TQM Design and Construct Pty Limited

Romeo and TQM Design and Construct Pty Limited were parties to litigation before the New South Wales Court of Appeal. The dispute concerned an application for summary judgment, following the striking out of the defendant's defence by the primary judge. The core of the appeal was whether the pleaded defences could arguably be made out.

The Court of Appeal was required to determine whether the primary judge erred in striking out the defence and granting summary judgment. Specifically, the court had to consider whether the defences, as pleaded, had a real prospect of success, or if they were so devoid of merit that they should be struck out without leave to amend.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in striking out the defence. Their Honours reasoned that the defences, while perhaps poorly pleaded, did raise arguable points that should have been permitted to proceed to a hearing on the merits. The legal principle applied was that striking out a defence and granting summary judgment is a drastic step that should only be taken when there is no real prospect of success. Consequently, the orders of the primary judge were set aside, and the matter was remitted to the District Court for a hearing. The respondents were ordered to pay the appellants' costs of the appeal and the costs of the summary judgment application in the court below.