Min Kyu Kim & Ors v Byung Sun (Eric) Song & Ors [2012] NSWSC 103

Min Kyu Kim & Ors v Byung Sun (Eric) Song & Ors [2012] NSWSC 103

Security for costs was not ordered against individual plaintiffs as they were presently ordinarily resident in New South Wales and not currently subject to jurisdiction for such an order under UCPR r 42.21(1)(a); no basis in principle or policy for exercising inherent jurisdiction to require security for costs from them. Security for costs not ordered against corporate plaintiffs because individuals were already party and liable for costs, following relevant authority. Statement of Claim, Defence, and Cross-Claim were not struck out as the pleadings contained sufficient material facts for fair conduct of the case; leave to file Amended Defence to Cross-Claim granted subject to necessary...

Jurisdiction
Australia
Judgment Date
22 February 2012
Procedural Posture
Interlocutory Applications / Ruling on Interlocutory Motions
Outcome
Security for costs not ordered; Statement of Claim not struck out; Defence and Cross-Claim not struck out; Leave to file Amended Defence to Statement of Cross-Claim granted subject to amendments; Parties directed to submit Short Minutes of Order.
Legal Topics
['security for Costs' 'strike Out Application' 'jurisdiction' 'oppression Remedy' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'franchising Code of Conduct' 'amendment of Pleadings']
['practice and Procedure' 'corporations Law' 'consumer Law'] ['security for Costs' 'strike Out Application' 'jurisdiction' 'oppression Remedy' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'franchising Code of Conduct' 'amendment of Pleadings']

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Procedural Posture

Interlocutory Applications / Ruling on Interlocutory Motions

Legal Issues

  1. 1 ["Whether individual plaintiffs are 'ordinarily resident' in New South Wales for purposes of security for costs" 'Whether the Court should exercise inherent jurisdiction to order security for costs' 'Whether corporate plaintiffs should provide security for costs' 'Whether the Statement of Claim should be struck out for lack of particularisation or as embarrassing' 'Whether Fourth and Fifth Plaintiffs should be removed as parties' 'Whether the Defence and Statement of Cross-Claim should be struck out for non-compliance' 'Leave to file Amended Defence to Statement of Cross-Claim']

Ratio Decidendi

Security for costs was not ordered against individual plaintiffs as they were presently ordinarily resident in New South Wales and not currently subject to jurisdiction for such an order under UCPR r 42.21(1)(a); no basis in principle or policy for exercising inherent jurisdiction to require security for costs from them. Security for costs not ordered against corporate plaintiffs because individuals were already party and liable for costs, following relevant authority. Statement of Claim, Defence, and Cross-Claim were not struck out as the pleadings contained sufficient material facts for fair conduct of the case; leave to file Amended Defence to Cross-Claim granted subject to necessary...

Court Disposition

Security for costs not ordered; Statement of Claim not struck out; Defence and Cross-Claim not struck out; Leave to file Amended Defence to Statement of Cross-Claim granted subject to amendments; Parties directed to submit Short Minutes of Order.

Orders

  • ['Security for costs as against individual and corporate plaintiffs declined.' "Application to strike out Plaintiffs' Statement of Claim declined." 'Application to strike out Defence and Statement of Cross-Claim declined.' 'Leave granted to Plaintiffs to file Amended Defence to Statement of Cross-Claim subject to...