Esanda v Gibbons [1999] NSWSC 1094

Esanda v Gibbons [1999] NSWSC 1094

The Court struck out the amended defence based on jus tertii because the conduct of TPI and Busrent in entering the transaction by which TPI purported to confer good title to Esanda precludes them, and the receiver asserting through them, from disputing Esanda’s right to immediate possession. The legal standard for striking out a pleading is satisfied where analysis shows the defence is clearly unsustainable.

Jurisdiction
Australia
Judgment Date
29 October 1999
Procedural Posture
Equity Proceedings / Ruling on Motion to Strike Out Defence and Related Applications
Outcome
Defence based on jus tertii struck out
Legal Topics
['conversion' 'right to Immediate Possession' 'jus Tertii' 'application to Strike Out Defence' 'estoppel']
['tort' 'practice and Procedure'] ['conversion' 'right to Immediate Possession' 'jus Tertii' 'application to Strike Out Defence' 'estoppel']

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Procedural Posture

Equity Proceedings / Ruling on Motion to Strike Out Defence and Related Applications

Legal Issues

  1. 1 ["Whether the defendant may plead jus tertii to defeat the plaintiff’s right to immediate possession in an action for conversion when the defendant's conduct precludes such a plea" 'Whether the defence based on jus tertii should be struck out for being untenable']

Ratio Decidendi

The Court struck out the amended defence based on jus tertii because the conduct of TPI and Busrent in entering the transaction by which TPI purported to confer good title to Esanda precludes them, and the receiver asserting through them, from disputing Esanda’s right to immediate possession. The legal standard for striking out a pleading is satisfied where analysis shows the defence is clearly unsustainable.

Court Disposition

Defence based on jus tertii struck out

Orders

  • ['Grant leave to the plaintiff to proceed against the second defendant for the purposes of obtaining orders in terms of paragraphs 3 and 4' 'Strike out the Amended Defence of the first defendant' 'Order the first and second defendants to deliver up to the plaintiff the vehicles specified in paragraph 14(a) of the...