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Szanto v Bainton

Szanto v Bainton

Case [2011] NSWSC 985 25 August 2011

Costs

Standing

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Szanto v Bainton [2011] NSWSC 985
Hearing dates: 12 August 2011
Decision date: 25 August 2011
Jurisdiction: Equity Division
Before: Ward J
Decision:
Orders made for provision of security for costs. First Amended Statement of Claim struck out. Leave to replead limited causes of action. Balance of notice of motion filed by first and second defendants on 11 May 2011 stood over. Plaintiff to pay costs of application on 12 August 2011.

Catchwords: COSTS - application pursuant to Rule 42.12 of the Uniform Civil Procedure Rules 2005 for security for costs - HELD - security for costs granted - CIVIL PROCEDURE - application pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 to strike out parts of Statement of Claim - HELD - Statement of Claim struck out as embarrassing (and in parts not disclosing an arguable cause of action) - leave granted to the plaintiff to replead particular causes of action subject to specific conditions being met by the plaintiff
Legislation Cited: Civil Liability Act 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Defamation Act 2005 (NSW)
Duties Act 1997 (NSW)
Foreign Judgments Regulation 1992 (Cth)
Landlord and Tenant (Amendment) Act 1948 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allen v Tobias (1958) 98 CLR 367
Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 134 ALR 187
Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324; 88 ALR 63
Arthur Young v Tieco International (1995) 182 LSJS 367
Australian Wool Innovation Ltd v Newkirk [2005] FCA 290
Bainton v Szanto [2011] NSWSC 278
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
British American Tobacco v Cowell (2002) 7 VR 524
Brocklebank & Co v The King's Lynn Steamship Co (1878) 3 CPD 365
Bruce v Odhams Press Limited [1936] 1 KB 697
Brundza v Robbie & Co (No 2) (1952) 88 CLR 171
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301
Byron Shire Business for the Future Inc v Byron Shire Council and Holiday Villages (Byron Bay) Pty Ltd (1994) 83 LGERA 59
Cabassi v Vila (1940) 64 CLR 130
Clark v State of New South Wales [2006] NSWSC 673
Commonwealth v Cable Water Skiing (Aust) Ltd (1994) 14 ACSR 760
Commonwealth v Griffiths (2007) 70 NSWLR 268
Connop v Varena [1984] 1 NSWLR 71
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11
Dare v Pulham (1982) 148 CLR 658
Davy v Garrett (1877) 7 Ch D 473
Dey v Victorian Railway Cmrs (1949) 78 CLR 62
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004]…

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.

Continue reading Szanto v Bainton

Details

AGLC: Szanto v Bainton [2011] NSWSC 985
Case: [2011] NSWSC 985
Decision Date: 25 August 2011

CaseChat Overview and Summary

The parties in this case were Szanto, the plaintiff, and Bainton, the defendant. The dispute revolved around an application by the defendant for security for costs and an application to strike out parts of the plaintiff's Statement of Claim. The case was heard in the Supreme Court of Victoria. The defendant, Bainton, sought security for costs under Rule 42.12 of the Uniform Civil Procedure Rules 2005, arguing that the plaintiff's claim was frivolous and without merit. Additionally, Bainton applied to strike out parts of the Statement of Claim under Rule 14.28, claiming that they were embarrassing and did not disclose an arguable cause of action.

The legal issues before the court were whether the plaintiff's claim was frivolous and without merit, warranting security for costs, and whether parts of the Statement of Claim were embarrassing and failed to disclose an arguable cause of action, warranting a strike-out. The court considered the merits of the plaintiff's claim and the content of the Statement of Claim in its analysis. The court found that the plaintiff's claim was not frivolous and without merit, but granted security for costs due to the defendant's ability to pay. The court also found that parts of the Statement of Claim were indeed embarrassing and did not disclose an arguable cause of action. Consequently, the court struck out those parts of the Statement of Claim and granted the plaintiff leave to replead particular causes of action, subject to specific conditions being met.

The final orders of the court included the granting of security for costs, the striking out of certain parts of the Statement of Claim, and the granting of leave to the plaintiff to replead particular causes of action. The court specified that the plaintiff had to meet certain conditions, such as ensuring that the repleaded Statement of Claim did not include any embarrassing allegations or claims that did not disclose an arguable cause of action. The court also ordered the plaintiff to pay the defendant's costs of the application for security for costs.

Orders