Kurniadi & Ors v Loh & Ors - [2003] FMCA 24

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KURNIADI & ORS v LOH & ORS

[2003] FMCA 24

PRACTICE AND PROCEDURE – Trade practices claim – security for costs – strike out application – whether Court satisfied service effected – Rule 6.04 Federal Magistrates Court Rules – relevance of transfer from Federal Court to Federal Magistrates Court – role of pleadings in Federal Magistrates Court.

Applicants:

HERMAN KURNIADI, IWAN SALIM, CHARLEW LIAW and HERLINA LIAW, MARIATI HARDI, SOEDARJANTO AND SYLVIA POERWITA

Respondents:

SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LIMITED (ACN 067 005 190)

File Nos:

WZ156 of 2002 to WZ161 of 2002

Delivered on:

7 February 2003

Delivered at:

Perth

Hearing Date:

11 November 2002

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr S Jacobs

Solicitors for the Applicant:

Stewart Green Mijovich

First Respondent:

In person

Second Respondent:

No appearance

Counsel for the Third Respondent:

Mr S Forbes

Solicitors for the Third Respondent:

Paiker & Overmeire

Counsel for the Fourth Respondent:

Mr N Pakes

Solicitors for the Fourth Respondent:

Murcia Pestell Hillard

Counsel for the Fifth Respondent:

Mr S England

Solicitors for the Fifth Respondent:

Lawton Gillon

ORDERS

The notice of motion filed by the third respondent on 20 September 2002 seeking security for costs be dismissed.
The notice of motion filed by the third respondent on 20 September 2002 seeking to strike out the statement of claim be dismissed.
The notice of motion filed by the fourth respondent on 20 September 2002 seeking security for costs be dismissed.
The notice of motion filed by the fourth respondent on 20 September 2002 seeking to strike out the statement of claim be dismissed.
The costs in relation to the notices of motion referred to in Orders 1 to 4 hereof be reserved.
The notices of motion filed by the second respondent on 1 November 2002 in relation to service be dismissed with no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 156 of 2002 to WZ 161 of 2002

HERMAN KURNIADI, IWAN SALIM, CHARLEW LIAW and HERLINA LIAW, MARIATI HARDI, SOEDARJANTO AND SYLVIA POERWITA

Applicants

And

SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD AND OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LIMITED (ACN 067 005 190)

Respondents

REASONS FOR JUDGMENT

There are number of applications before the Court as set out in the cover sheet to this judgment. The following applications had previously been filed in the Federal Court of Australia:-
Kurniadi v Simon Thuang Chye Loh & Ors – WZ156 of 2002 (formerly N1190 of 2001), Iwan Salim v Simon Thuang Chye Loh & Ors – WZ157 of 2002 (formerly N1191 of 2001), Liaw & Anor v Simon Thuang Chye Loh & Ors – WZ158 of 2002 (formerly W147 of 2002), Hardi v Simon Thuang Chye Loh & Ors – WZ159 of 2002 (formerly W148 of 2002), Soedarjanto v Simon Thuang Chye Loh & – WZ160 of 2002 (formerly W157…

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 Kurniadi & Ors v Loh & Ors 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: [2003] FMCA 24
Decision Date: 7 February 2003

CaseChat Overview and Summary

In the case of Kurniadi & Ors v Loh & Ors, the plaintiffs, Kurniadi and others, filed a statement of claim against the defendants, Loh and others. The dispute revolves around the defendants' motions to dismiss the plaintiffs' claims, seek security for costs, and strike out the statement of claim. The case was heard in the Supreme Court of Queensland.

The central legal issues the court had to address were whether the plaintiffs' claims were frivolous, vexatious, or an abuse of process, and if the plaintiffs should be required to provide security for costs. Additionally, the court had to determine if the statement of claim should be struck out due to the plaintiffs' inability to properly serve the defendants.

The court found that the plaintiffs' claims were not frivolous, vexatious, or an abuse of process, and thus dismissed the motions for security for costs and to strike out the statement of claim. The court also dismissed the motions related to service, concluding that there were no grounds to order the plaintiffs to serve the defendants in a particular manner. Consequently, the court ordered that the costs related to the notices of motion be reserved, and no costs were awarded to the defendants in relation to the service motions.

In summary, the court dismissed all motions brought by the defendants, upheld the plaintiffs' right to proceed with their claims, and reserved costs for a later determination.

Orders

Orders of the court

The notice of motion filed by the third respondent on 20 September 2002 seeking security for costs be dismissed.

The notice of motion filed by the third respondent on 20 September 2002 seeking to strike out the statement of claim be dismissed.

The notice of motion filed by the fourth respondent on 20 September 2002 seeking security for costs be dismissed.

The notice of motion filed by the fourth respondent on 20 September 2002 seeking to strike out the statement of claim be dismissed.

The costs in relation to the notices of motion referred to in Orders 1 to 4 hereof be reserved.

The notices of motion filed by the second respondent on 1 November 2002 in relation to service be dismissed with no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.