McKay v Findex Group Limited

David McKay (the plaintiff) brought an action against Findex Group Limited (the first defendant), Spiro Paule (the second defendant), Danielle Ludbey (the third defendant), and Phillip Hart (the fourth defendant) (the defendants) for trespass. The plaintiff claims that a search of his apartment, which was carried out pursuant to a search order made by the Supreme Court of New South Wales on 16 September 2016, was an unauthorised trespass. The defendants filed an application for summary dismissal or striking out of the plaintiff's claim on various grounds, including that it was an abuse of process and that the plaintiff had waived his right to bring the claim. The Court considered the application on the basis of the evidence filed by both parties, as well as the arguments made in writing and orally. The Court found that the claim was not amenable to summary dismissal and that the defendants had not established that the claim was bound to fail. However, the Court also found that the plaintiff was precluded from challenging the validity of the search order in this proceeding, and that the claim based on the execution of the search order would need to be repleaded. The Court struck out the paragraphs of the claim that were based on invalidity of the search order and ordered that the proceeding travel with the Search Order proceeding. The plaintiff was ordered to pay 80% of the defendants' costs of the application.