Hip Wo Pacific v Sun-Forbes - [2005] NSWSC 1172

CITATION:
Hip Wo Pacific v Sun-Forbes [2005] NSWSC 1172

HEARING DATE(S): 15 November 2005

JUDGMENT DATE :

21 November 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) The plaintiff is to provide security for costs of the defendant in the sum of $45,000 in the form acceptable to the Registrar within 28 days otherwise the proceedings are to be stayed until such sum is paid; (2) Costs are reserved.

CATCHWORDS:
Strike out statement of claim - security for costs - particulars

LEGISLATION CITED:
Rules 13.4(1), 14.28(1) & 42.21 UCPR

CASES CITED:
Idaport Pty Limited v National Australia Bank Limited [2000] NSWSC 744
Yorke v Lucas (1985) CLR 661

PARTIES:
Hip Wo Pacific Herbal Company Pty Limited (ACN 094 667 302)
(Plaintiff)
Lijia Sun-Forbes
(Defendant)

FILE NUMBER(S):
SC 20181/2005

COUNSEL:
Mr Anthony Britt
(Plaintiff)
Mr Mark Lawson
(Defendant)

SOLICITORS:
Truman Hoyle Lawyers
(Plaintiff)
Heazlewoods Bushby International
(Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 21 NOVEMBER 2005
20181/2005 - HIP WO PACIFIC HERBAL COMPANY

PTY LIMITED (ACN 094 667 302) v
LIJIA SUN-FORBES

JUDGMENT (Strike out statement of claim
- security for costs - particulars)

1 HER HONOUR: By notice of motion filed 10 October 2005 the defendant seeks firstly, an order that the statement of claim be struck out on the grounds that there is no reasonable cause of action due to questions of law pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or Rule 14.28(1) of the UCPR; secondly, in the alternative, an order that the plaintiff provide security as to costs in the event that the plaintiff’s claim is unsuccessful; and thirdly an order that the plaintiff to properly answer the request for further and better particulars furnished on the plaintiff on 30 June 2005.

2 The plaintiff is Hip Wo Pacific Herbal Company Pty Limited (ACN 094 667 302). It did not rely upon any affidavit evidence. The defendant is Lijia Sun-Forbes. The defendant relied on three affidavits of Leigh Marian Turner sworn 10 October 2005, 2 November 2005 and 8 November 2005.

3 Rule 13.4(1) of the UCPR provides that the court may dismiss the proceedings generally or in relation to any claim for relief in three situations. These are if the proceedings are frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of the process of the court.

4 Alternatively, Rule 14.28(1) of the UCPR provides that the court may at any stage of the proceedings strike out the whole or any part of the pleading in three situations. These include: firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.

5 The plaintiff in its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hip Wo Pacific v Sun-Forbes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWSC 1172
Decision Date: 21 November 2005

CaseChat Overview and Summary

In the case of Hip Wo Pacific v Sun-Forbes, the plaintiff, Hip Wo Pacific, sought to recover damages for breach of contract and other related claims against the defendant, Sun-Forbes. The dispute came before the Federal Court of Australia, where the primary issue was whether the defendant's statement of claim should be struck out and if security for costs should be ordered against the plaintiff.

The court was tasked with determining whether the plaintiff's claim was an abuse of process due to the vagueness of the pleadings, and if the plaintiff should be required to provide security for costs. The plaintiff argued that the defendant's statement of claim was vague and did not provide sufficient particulars to allow a fair defence, while the defendant contended that the plaintiff's request for security for costs was unjust and an abuse of process.

In its decision, the court held that the plaintiff's statement of claim was not so vague as to constitute an abuse of process. The court found that while the plaintiff's statement of claim contained broad and general allegations, it provided sufficient particulars to enable the defendant to understand the nature of the claims and to prepare a defence. The court further found that the plaintiff's request for security for costs was not an abuse of process, and ordered the plaintiff to provide security for the defendant's costs of the proceedings. The court reasoned that the plaintiff's financial position and the nature of the claims warranted the imposition of security for costs to protect the defendant from potential financial hardship.

Orders