Ensor v Forrest [2001] NSWSC 790

Ensor v Forrest [2001] NSWSC 790

The defendants bore the onus of establishing that the proceedings were frivolous or vexatious, an abuse of process, or otherwise a proper case for the orders sought. On the evidence, the court was not prepared to infer that the plaintiffs lacked a genuine intention to pursue the claim or were using it for an ulterior purpose. The second plaintiff's failure to provide particulars could still be rectified, and removal under SCR Pt 8 r 9 was not appropriate. Although the plaintiffs appeared unlikely to meet an adverse costs order and the defendants faced potential prejudice, the factors were balanced and there was insufficient basis, particularly as to the plaintiffs' prospects and proposed...

Jurisdiction
Australia
Judgment Date
07 September 2001
Procedural Posture
Defamation / Defendants' Notice of Motion to Strike Out the Statement of Claim, Remove the Second Plaintiff as a Party, and Seek Security for Costs
Outcome
Defendants' notice of motion dismissed.
Legal Topics
['strike Out' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'removal of Party' 'particulars of Identification' 'security for Costs' 'dismissal for Want of Prosecution']
['defamation' 'civil Procedure'] ['strike Out' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'removal of Party' 'particulars of Identification' 'security for Costs' 'dismissal for Want of Prosecution']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Defamation / Defendants' Notice of Motion to Strike Out the Statement of Claim, Remove the Second Plaintiff as a Party, and Seek Security for Costs

Legal Issues

  1. 1 ['Whether the statement of claim should be struck out because the proceedings were frivolous or vexatious or an abuse of process.' 'Whether the second plaintiff should be removed as a party to the proceedings.' "Whether the first plaintiff or second plaintiff should provide security for the defendants' costs."]

Ratio Decidendi

The defendants bore the onus of establishing that the proceedings were frivolous or vexatious, an abuse of process, or otherwise a proper case for the orders sought. On the evidence, the court was not prepared to infer that the plaintiffs lacked a genuine intention to pursue the claim or were using it for an ulterior purpose. The second plaintiff's failure to provide particulars could still be rectified, and removal under SCR Pt 8 r 9 was not appropriate. Although the plaintiffs appeared unlikely to meet an adverse costs order and the defendants faced potential prejudice, the factors were balanced and there was insufficient basis, particularly as to the plaintiffs' prospects and proposed...

Court Disposition

Defendants' notice of motion dismissed.

Orders

  • ["The defendants' notice of motion is dismissed." "The defendants must pay the plaintiffs' costs."]