A & S Oayda Investments P/L & Ors v. Burns Philp Trustee Company Ltd & Ors [1994] FCA 935

A & S Oayda Investments P/L & Ors v. Burns Philp Trustee Company Ltd & Ors [1994] FCA 935

The statement of claim is struck out in its entirety as it discloses no reasonable cause of action against any respondent or proposed respondent, fails to plead material facts (including authority or notice for representations), and is confusing and embarrassing. Security for costs is ordered against the remaining applicants (A & S Oayda Investments Pty Ltd, Robert Oayda, and Continental Shirts Holding Co Pty Ltd, if properly prosecuting); the proceeding is stayed until security is provided. Certain parties are removed as applicants and respondents as indicated. Leave to continue against Burns Philp Trustee Company Ltd (In Liquidation) is granted subject to customary terms.

Parties
First Applicant: A & S Oayda Investments Pty Limited; Second Applicant: The Shirt Factory Pty Limited; Third Applicant: Continental Shirts Holding Co Pty Limited; Fourth Applicant: Continental Shirts Manufacturing Co Pty Limited; Fifth Applicant: Robert Rafec Oayda; Sixth Applicant: Allen Oayda; First Respondent: Burns Philp Trustee Company Limited (In Liquidation); Second Respondent: Estate Mortgage Managers Ltd (In Liquidation); Third Respondent: Estate Mortgage Financial Services Ltd (In Liquidation); Fourth Respondent: Mercantile Mutual Life Insurance Co Limited; Fifth Respondent: Martin Madden; Sixth Respondent: Gregory Robertson
Jurisdiction
Australia
Judgment Date
25 November 1994
Procedural Posture
Interlocutory Motion / Interlocutory Ruling on Motions to Strike Out and Associated Matters
Outcome
Statement of claim struck out; security for costs ordered; certain parties removed; proceeding stayed until security provided; short minutes of order to be brought in; matter stood over.
Legal Topics
Interlocutory Application, Striking Out Pleadings, Security for Costs, Liquidation, Assignment of Debt, Misleading or Deceptive Conduct
Civil Procedure Corporate Law Trade Practices Interlocutory Application Striking Out Pleadings Security for Costs Liquidation Assignment of Debt +1 more

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Parties

A & S Oayda Investments Pty Limited

First Applicant

The Shirt Factory Pty Limited

Second Applicant

Continental Shirts Holding Co Pty Limited

Third Applicant

Continental Shirts Manufacturing Co Pty Limited

Fourth Applicant

Robert Rafec Oayda

Fifth Applicant

Allen Oayda

Sixth Applicant

Burns Philp Trustee Company Limited (In Liquidation)

First Respondent

Estate Mortgage Managers Ltd (In Liquidation)

Second Respondent

Estate Mortgage Financial Services Ltd (In Liquidation)

Third Respondent

Mercantile Mutual Life Insurance Co Limited

Fourth Respondent

Martin Madden

Fifth Respondent

Gregory Robertson

Sixth Respondent

Procedural Posture

Interlocutory Motion / Interlocutory Ruling on Motions to Strike Out and Associated Matters

Legal Issues

  1. 1 Whether the statement of claim should be struck out for failing to disclose a reasonable cause of action
  2. 2 Whether there is embarrassment, prejudice, or delay justifying striking out
  3. 3 Whether security for costs should be ordered

Ratio Decidendi

The statement of claim is struck out in its entirety as it discloses no reasonable cause of action against any respondent or proposed respondent, fails to plead material facts (including authority or notice for representations), and is confusing and embarrassing. Security for costs is ordered against the remaining applicants (A & S Oayda Investments Pty Ltd, Robert Oayda, and Continental Shirts Holding Co Pty Ltd, if properly prosecuting); the proceeding is stayed until security is provided. Certain parties are removed as applicants and respondents as indicated. Leave to continue against Burns Philp Trustee Company Ltd (In Liquidation) is granted subject to customary terms.

Court Disposition

Statement of claim struck out; security for costs ordered; certain parties removed; proceeding stayed until security provided; short minutes of order to be brought in; matter stood over.

Orders

  • The matter be stood over to a date to be fixed.
  • Mercantile Mutual to bring in short minutes of order to give effect to reasons for judgment.