Perera v Genworth Financial Mortgage Insurance Pty Ltd [2018] NSWSC 448

Supreme Court New South Wales

Medium Neutral Citation: Perera v Genworth Financial Mortgage Insurance Pty Ltd [2018] NSWSC 448 Hearing dates: 10 April 2018 Date of orders: 10 April 2018 Decision date: 10 April 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Dismiss the proceedings constituted by the Amended Statement of Claim filed 26 October 2017. (2) Order the plaintiff to pay the defendant's costs. (3) Grant leave to the defendant to file and serve any further Notice of Motion seeking further orders for costs on or before 5pm Tuesday, 17 April 2018. Direct that a copy of any such material be provided to my Associate. (4) Order the plaintiff to file and serve any material upon which he proposes to rely, including submissions in opposition to such an order, by 5pm 1 May 2018. Direct that he deliver a copy of that material to my Associate. (5) Reserve judgment on any such application, and order that it be disposed of on the papers unless the Court restores the matter to the list. (6) Grant the parties liberty to apply on one day's notice with respect to those subsequent orders. Catchwords: TORTS – malicious prosecution – question of the existence of malicious prosecution in certain civil proceedings – whether the four elements of malicious prosecution could be established

CIVIL PROCEDURE – application by defendant to dismiss or strike out Amended Statement of Claim pursuant to UCPR r 13.4 – no reasonable cause of action disclosed – elements of the tort not established – application granted – proceedings dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Eleizer v The Owners Strata Plan No. 51682 [2017] NSWSC 783 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Ltd [2010] NSWSC 1043 Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Ltd [2017] NSWSC 639 Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Ltd [2017] NSWSC 640 Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Limited [2011] NSWCA 279 Perera v Genworth Financial Mortgage Insurance Pty Limited [2015] NSWSC 1357 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Sahade v Bischoff [2015] NSWCA 418 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Watiwat v Dixon [2017] NSWSC 360 Texts Cited: Not Applicable Category: Principal judgment Parties: Madura Perera (P) Genworth Financial Mortgage Insurance Pty Ltd (D) Representation: Counsel: Self-represented (P) R Mansted (D)