Menzies v Paccar Financial Pty Ltd [2011] NSWSC 1488

Menzies v Paccar Financial Pty Ltd [2011] NSWSC 1488

Where a plaintiff is unable to identify any person within a defendant company as having the malicious intent required for the tort of malicious prosecution, the relevant pleading cannot be permitted and must be struck out.

Parties
First Plaintiff: Ian David Menzies; Second Plaintiff: Colleen Anne Menzies; Defendant: Paccar Financial Pty Ltd
Jurisdiction
Australia
Judgment Date
09 December 2011
Procedural Posture
Interlocutory Application / Motion to Amend Statement of Claim
Outcome
Leave to amend Statement of Claim granted, omitting paragraph 12; Plaintiffs to pay Defendant's costs of the amendments and the Motion.
Legal Topics
Malicious Prosecution, Pleading Requirements, Attribution of State of Mind to Corporations, Abuse of Process
Torts Malicious Prosecution Pleading Requirements Attribution of State of Mind to Corporations Abuse of Process

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Parties

Ian David Menzies

First Plaintiff

Colleen Anne Menzies

Second Plaintiff

Paccar Financial Pty Ltd

Defendant

Procedural Posture

Interlocutory Application / Motion to Amend Statement of Claim

Legal Issues

  1. 1 Whether a pleading of malicious prosecution against a company must identify the specific individual(s) within the company alleged to have had malicious intent
  2. 2 Whether malicious intent can be inferred solely from the absence of reasonable and proper cause

Ratio Decidendi

Where a plaintiff is unable to identify any person within a defendant company as having the malicious intent required for the tort of malicious prosecution, the relevant pleading cannot be permitted and must be struck out.

Court Disposition

Leave to amend Statement of Claim granted, omitting paragraph 12; Plaintiffs to pay Defendant's costs of the amendments and the Motion.

Orders

  • Leave to the Plaintiffs to amend the Statement of Claim in the form annexed to the affidavit of Trevor Hall sworn 18 October 2011 omitting paragraph 12.
  • The Plaintiffs are to pay the Defendant's costs thrown away by reason of the amendments.