Queensland Bar - Cases Already Passed

Momibo Pty Ltd v Adam (2004) 1 DCLR (NSW) 316 {Ans: Ethics - lawyer to pay costs if no reasonable prospect of success Procedure- summary dismissal concerned a claim for a breach of lease (and associated matters). The vast bulk of the damages claimed related to a claim for loss of profits based on the exercise of an option to renew. However, it was unarguable that the option had been validly exercised, and Neilson DCJ described this aspect of the claim as being 'totally unfounded'. 5 element test: a) The first is an overarching element that the practitioner subjectively held a reasonable belief about prospects which is based on propositions which can be regarded as logically arguable in an objective sense; b) The second is that the reasonable belief must have its objective foundation in material available to the practitioner at the relevant time (which material need not be admissible evidence as such and can extend to material which is credible albeit not strictly admissible); c) The third is that the material thus identified constitutes a proper basis for alleging each relevant fact; d) The fourth is that the claim must proceed according to a reasonably arguable view of