Cole v Challenge Bank Ltd

[2001] FCA 1425

FEDERAL COURT OF AUSTRALIA

Cole v Challenge Bank Ltd [2001] FCA 1425

GREGORY OCTAVIUS COLE and WENDY SUZANNE COLE v CHALLENGE BANK LIMITED and NORGARD CLOHESSY

W 170 of 2001

CARR J
PERTH
9 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 170 OF 2001

BETWEEN:

GREGORY OCTAVIUS COLE and
WENDY SUZANNE COLE
Applicants

AND:

CHALLENGE BANK LIMITED
(ACN 009 230 433)
First Respondent

NORGARD CLOHESSY
Second Respondent

JUDGE:

CARR J

DATE OF ORDER:

9 OCTOBER 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The substituted statement of claim be struck out.

2.        The application be dismissed.

3.The applicants pay the respondents’ costs of the application, including the costs of any motions filed by the respondents, and any reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 170 OF 2001

BETWEEN:

GREGORY OCTAVIUS COLE and
WENDY SUZANNE COLE
Applicants

AND:

CHALLENGE BANK LIMITED
(ACN 009 230 433)
First Respondent

NORGARD CLOHESSY
Second Respondent

JUDGE:	CARR J
DATE:	9 OCTOBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. The Court has before it three motions on notice.  In the first motion the first respondent seeks an order, under Order 20 rule 2 of the Federal Court Rules, that the proceedings be dismissed or forever stayed on the alternative grounds that no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious or that it is an abuse of process.  In the second part of that motion the first respondent asks for an order that the applicants give security, pursuant to Order 28 rule 2 of the Federal Court Rules, for its costs in the application in the sum of $90,000 by way of a payment of that amount into Court and that in the meantime all further proceedings be stayed.

2. In the second motion the second respondent seeks an order that paragraphs 49 to 58 of the applicants’ substituted statement of claim (which plead their case against the second respondent) be struck out and their claim against it be dismissed. 

3. In the third motion the second respondent seeks an order that the applicants pay into Court the sum of $90,000 (or such other sum as the Court may determine) as security for its costs. 

4. These reasons relate to the two strike-out motions.

   FACTUAL BACKGROUND

5. The following recital of the factual background of this matter is taken largely from the applicants’ minute of substituted statement of claim (which I shall refer to as the statement of claim), filed by leave granted by the District Registrar on 29 June 2001.  This recital should not be taken, in any way, as amounting to findings of fact.  It is simply my assessment of the proceedings on the current state of the evidence which has not yet been tested. 

6. The applicants were the sole directors and shareholders (in their statement of claim their shareholding is, somewhat confusingly, described…