Moore v Moore (No 2) [2021] NSWDC 73

Moore v Moore (No 2) [2021] NSWDC 73

The statement of claim is defective in form but it is arguable, on current authority, that making an application for an ADVO can ground an action for damages for malicious prosecution. The pleaded case should be amended rather than dismissed or struck out at this stage.

Jurisdiction
Australia
Judgment Date
11 February 2021
Procedural Posture
Civil / Procedural Ruling on Notice of Motion to Dismiss/strike Out (ucpr 13.4) and Leave to Replead
Outcome
Leave granted to plaintiff to amend statement of claim; notice of motion dismissed; each party to pay their own costs.
Legal Topics
['malicious Prosecution' 'summary Dismissal' 'strike Out' 'advo Applications' 'pleadings' 'costs']
['torts' 'practice and Procedure'] ['malicious Prosecution' 'summary Dismissal' 'strike Out' 'advo Applications' 'pleadings' 'costs']

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Procedural Posture

Civil / Procedural Ruling on Notice of Motion to Dismiss/strike Out (ucpr 13.4) and Leave to Replead

Legal Issues

  1. 1 ['Whether an application for an ADVO can ground an action for malicious prosecution' 'Whether the statement of claim is adequate' 'Whether sections of the statement of claim related to ADVOs should be struck out or dismissed']

Ratio Decidendi

The statement of claim is defective in form but it is arguable, on current authority, that making an application for an ADVO can ground an action for damages for malicious prosecution. The pleaded case should be amended rather than dismissed or struck out at this stage.

Court Disposition

Leave granted to plaintiff to amend statement of claim; notice of motion dismissed; each party to pay their own costs.

Orders

  • ['Leave granted to the plaintiff to file and serve an amended statement of claim within 21 days.' 'Defendant to file a defence to the amended statement of claim within 28 days of service.' 'Notice of motion filed 11 November 2020 dismissed by consent.' 'Each party to pay his own costs of the notice of motion.']