Viavattene v Morton - [2011] NSWSC 1173

Supreme Court

New South Wales

Medium Neutral Citation: Viavattene v Morton [2011] NSWSC 1173
Hearing dates: 19/09/2011 and 21/09/2011
Decision date: 22 September 2011
Jurisdiction: Common Law
Before: Latham J
Decision:
The plaintiffs' statement of claim filed 17 May 2011 and annexures are struck out.
The plaintiffs to provide security for the costs of the first and second defendants by paying the sum of $50,000 into Court on or before 11 November 2011.
The proceedings against the first and second defendants are stayed until security for costs is provided in accordance with order 2.
If security for costs is not provided in accordance with order 2, the proceedings against the first and second defendants are to be dismissed with costs.
Subject to satisfaction by the plaintiffs of order 2, the plaintiffs are to file and serve an amended statement of claim on or before 2 December 2011.
The plaintiffs' notice of motion of 16 August 2011 is dismissed.

Catchwords: PROCEDURE - application to strike out statement of claim - statement of claim defective - unsupported by particulars - unintelligible, ambiguous, vague and too general - order for security for costs - second plaintiff resides outside New South Wales - plaintiffs have not paid two previous cost orders - application for joinder cannot survive striking out of statement of claim.
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Rajski v Scitec Corporation Pty Ltd (unreported) NSWCA 16 June 1986
Pethers v Minister for Agriculture [2010] NSWSC 805
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
Category: Principal judgment
Parties: Beverley Viavattene - First Plaintiff
Peter Viavattene - Second Plaintiff
Bruce Morton - First Defendant
Evelyn Birch - Second Defendant
Representation: Counsel:
Self Represented - Plaintiffs
D Lambert - Defendants
Solicitors:
Self-represented - Plaintiffs
Ellis & Baxter - Defendants

File Number(s): 2011/162069

Judgment

The plaintiffs filed a statement of claim on 17 May 2011 which claims the following relief, namely an injunction to stop the defendants trespassing, costs awarded in favour of the plaintiffs, and damages of $130,690 (said to represent $1250 each time that the defendants trespassed on the plaintiffs' land) and economic and non economic compensation in the amount of $1,500,000.

The pleadings and particulars state the following:-

1. The defendants have trespassed, causing damage to the plaintiffs' land over 140 times, and disturbed the plaintiffs' quiet peace and enjoyment for the past six months.

2. The defendants have no right of access, easement or carriage way through or over the plaintiffs' land registered on title.

3. The defendants, while trespassing on the plaintiffs' land, use offensive language and behave in an offensive manner and incited violence against the plaintiffs.

4. The first defendant Bruce Morton unlawfully trespassed, assaulted and caused immediate harm and personal injury to the first plaintiff on the third and eighth of November 2010.

The address provided in respect of both the plaintiffs in the statement of claim is 1520 Numinbah Road Chillingham NSW. The plaintiffs each purport to verify…

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 Viavattene v Morton

Details

AGLC: Viavattene v Morton [2011] NSWSC 1173
Case: [2011] NSWSC 1173
Decision Date: 22 September 2011

CaseChat Overview and Summary

In the case of Viavattene v Morton, the plaintiffs sought damages for alleged misleading or deceptive conduct and breaches of Australian Consumer Law. The defendants applied to strike out the statement of claim, arguing that it was defective in various ways, including being unsupported by particulars, unintelligible, ambiguous, vague, and too general. The defendants also sought an order for security for costs and raised concerns about the joinder of a second plaintiff who resided outside New South Wales and the plaintiffs' failure to pay two previous cost orders.

The primary legal issues before the court were whether the statement of claim was sufficiently particularised and whether it disclosed a reasonable cause of action. The court had to determine whether the plaintiffs' claims were clear enough to proceed and if there were any grounds for striking out the statement of claim or imposing a security for costs. The court also needed to consider the implications of the second plaintiff's residence outside New South Wales and the plaintiffs' history of non-payment of previous cost orders on the application for joinder.

The court found that the statement of claim was indeed defective as it lacked particulars and was too vague and general. The court held that the plaintiffs had not provided sufficient information to enable the defendants to properly respond to the claims. The court also determined that the second plaintiff's residence outside New South Wales and the plaintiffs' failure to pay previous cost orders rendered the application for joinder untenable. Consequently, the court granted the application to strike out the statement of claim and dismissed the application for joinder. Additionally, the court made an order for security for costs to protect the defendants from potential liability for the plaintiffs' costs.

The court ordered that the statement of claim be struck out and dismissed the application for joinder. The plaintiffs were required to pay the defendants' costs of the application for security for costs, and an order for security for costs was made to protect the defendants from potential liability for the plaintiffs' costs.

Orders