Gillford Pty Ltd & Ors v Burdon Pty Ltd & Ors [1995] FCA 1071

Gillford Pty Ltd & Ors v Burdon Pty Ltd & Ors [1995] FCA 1071

The respondents' challenges to paragraphs 7 to 36 of the amended statement of claim raised real issues of fact and law, including issues about mediation confidentiality, admissibility, settlement obligations and estoppel, and those issues were not manifestly or plainly unarguable; they should be determined at a final hearing rather than by strike out. Security for costs was also refused because, if the applicants ultimately succeeded, there was a reasonable argument that their financial plight had been contributed to or caused by the respondents' impugned conduct, making the requested security inappropriate in all the circumstances.

Jurisdiction
Australia
Judgment Date
19 December 1995
Procedural Posture
Federal Court Interlocutory Notice of Motion in Trade Practices Proceeding / Amended Notice of Motion Seeking Strike Out and Security for Costs
Outcome
Respondents' amended notice of motion dismissed; respondents ordered to pay the applicants' costs of the notice of motion and amended notice of motion.
Legal Topics
['misleading and Deceptive Conduct' 'strike Out of Pleadings' 'security for Costs' 'confidentiality and Mediation' 'admissibility of Mediation Evidence' 'settlement Agreement' 'estoppel']
['trade Practices' 'fair Trading' 'civil Procedure' 'costs' 'evidence'] ['misleading and Deceptive Conduct' 'strike Out of Pleadings' 'security for Costs' 'confidentiality and Mediation' 'admissibility of Mediation Evidence' 'settlement Agreement' 'estoppel']

Case Brief

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Procedural Posture

Federal Court Interlocutory Notice of Motion in Trade Practices Proceeding / Amended Notice of Motion Seeking Strike Out and Security for Costs

Legal Issues

  1. 1 ['Whether paragraphs 7 to 36 of the amended statement of claim should be struck out as manifestly or plainly unarguable.' 'Whether confidentiality, without prejudice, mediation or public policy considerations precluded reliance on evidence of alleged representations made during mediation.' 'Whether claims about implied terms or rectification of the settlement agreement were barred by estoppel, waiver, election, or the rule against approbating and reprobating.' 'Whether the applicants should provide security for costs in the sum of $155,000.' 'Whether each applicant should pay $60,000 into Court as security for costs previously ordered.']

Ratio Decidendi

The respondents' challenges to paragraphs 7 to 36 of the amended statement of claim raised real issues of fact and law, including issues about mediation confidentiality, admissibility, settlement obligations and estoppel, and those issues were not manifestly or plainly unarguable; they should be determined at a final hearing rather than by strike out. Security for costs was also refused because, if the applicants ultimately succeeded, there was a reasonable argument that their financial plight had been contributed to or caused by the respondents' impugned conduct, making the requested security inappropriate in all the circumstances.

Court Disposition

Respondents' amended notice of motion dismissed; respondents ordered to pay the applicants' costs of the notice of motion and amended notice of motion.

Orders

  • ["The respondents' amended notice of motion is dismissed." 'The respondents shall pay the costs of the applicants of the notice of motion and of the amended notice of motion.']