Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd [2010] NSWDC 232

Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd [2010] NSWDC 232

The notice of motion failed because, although the Federal Court proceedings did not expose the plaintiff to a civil penalty, it was not sufficiently clear at an interlocutory stage that the malicious prosecution claim was hopeless or could not support an argued extension of the tort. The amended statement of claim also sufficiently pleaded an abuse of process by alleging that the Federal Court proceedings were based on fabricated allegations and brought for collateral purposes, including affecting the plaintiff's bid and business dealings and injuring his reputation. Paragraph 9 should not be struck out because lack of reasonable and probable cause is an essential element of malicious...

Jurisdiction
Australia
Judgment Date
20 October 2010
Procedural Posture
Civil Tort Claim for Malicious Prosecution and Abuse of Process / Interlocutory Notice of Motion for Summary Dismissal or Strike Out of the Amended Statement of Claim
Outcome
The defendants' notice of motion was dismissed, with the defendants to pay the plaintiff's costs of the motion.
Legal Topics
['malicious Prosecution' 'abuse of Process' 'strike Out' 'summary Dismissal' 'civil Penalty Proceedings' 'reasonable Cause of Action']
['torts' 'civil Procedure' 'corporations'] ['malicious Prosecution' 'abuse of Process' 'strike Out' 'summary Dismissal' 'civil Penalty Proceedings' 'reasonable Cause of Action']

Case Brief

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Procedural Posture

Civil Tort Claim for Malicious Prosecution and Abuse of Process / Interlocutory Notice of Motion for Summary Dismissal or Strike Out of the Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the Federal Court proceedings exposed the plaintiff to a civil penalty under the Corporations Act 2001 (Cth).' 'Whether a claim for malicious prosecution can be maintained in respect of civil proceedings involving no risk of civil penalty.' 'Whether the amended statement of claim disclosed a cause of action for abuse of process.' 'Whether paragraph 9 of the amended statement of claim alleging no reasonable or probable cause should be struck out.']

Ratio Decidendi

The notice of motion failed because, although the Federal Court proceedings did not expose the plaintiff to a civil penalty, it was not sufficiently clear at an interlocutory stage that the malicious prosecution claim was hopeless or could not support an argued extension of the tort. The amended statement of claim also sufficiently pleaded an abuse of process by alleging that the Federal Court proceedings were based on fabricated allegations and brought for collateral purposes, including affecting the plaintiff's bid and business dealings and injuring his reputation. Paragraph 9 should not be struck out because lack of reasonable and probable cause is an essential element of malicious...

Court Disposition

The defendants' notice of motion was dismissed, with the defendants to pay the plaintiff's costs of the motion.

Orders

  • ['The notice of motion is dismissed.' "The defendants are to pay the plaintiff's costs of the motion."]