Fatman Corporation Pty Ltd v Trigamist Holdings Pty Ltd [2001] NSWSC 504

Fatman Corporation Pty Ltd v Trigamist Holdings Pty Ltd [2001] NSWSC 504

The refusal of the adjournment was not shown to be erroneous, but the statement of claim should not have been struck out because the material before the Master disclosed several arguable bases on which the purported removal of the plaintiff as trustee could be invalid. The plaintiff's standing as trustee was therefore not so clear against it that the proceedings could be disposed of on a strike out application. Because there were questions about the plaintiff corporation's ability to meet costs, security for costs was ordered as a condition of continuing the proceedings.

Jurisdiction
Australia
Judgment Date
01 June 2001
Procedural Posture
Appeal From Two Judgments of a Master in Supreme Court Proceedings / Appeal Against Refusal of Adjournment and Order Striking Out Statement of Claim
Outcome
Appeal allowed.
Legal Topics
['appeal From Master' 'adjournment' 'strike Out Application' 'abuse of Process' 'trustee Standing' 'removal of Trustee' 'security for Costs']
['civil Procedure' 'equity' 'trusts' 'corporations Law'] ['appeal From Master' 'adjournment' 'strike Out Application' 'abuse of Process' 'trustee Standing' 'removal of Trustee' 'security for Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Two Judgments of a Master in Supreme Court Proceedings / Appeal Against Refusal of Adjournment and Order Striking Out Statement of Claim

Legal Issues

  1. 1 ['Whether the Master erred in refusing an adjournment of the motion to strike out the statement of claim.' "Whether the plaintiff's allegation that it remained trustee of the unit trust was so clearly untenable that the statement of claim should be struck out as an abuse of process." 'Whether security for costs should be ordered if the appeal was allowed.']

Ratio Decidendi

The refusal of the adjournment was not shown to be erroneous, but the statement of claim should not have been struck out because the material before the Master disclosed several arguable bases on which the purported removal of the plaintiff as trustee could be invalid. The plaintiff's standing as trustee was therefore not so clear against it that the proceedings could be disposed of on a strike out application. Because there were questions about the plaintiff corporation's ability to meet costs, security for costs was ordered as a condition of continuing the proceedings.

Court Disposition

Appeal allowed.

Orders

  • ['The plaintiff is to pay the costs of the motion before the Master.' 'The costs of the appeal are to be costs in the cause.' 'The plaintiff is to provide security for costs in the sum of $55,000 no later than 2 July 2001, otherwise the proceedings are to be stayed until further order.' "Upon the proceedings being...