Simmons, A.N. & Anor v Clearview Aluminium Window (Aust) Pty Ltd & Ors [1995] FCA 315

Simmons, A.N. & Anor v Clearview Aluminium Window (Aust) Pty Ltd & Ors [1995] FCA 315

The applicants' pleading against the second and third respondents was deficient because it did not fairly disclose the cause of action, material facts, and issues of fact and law, so it was struck out with leave to re-plead. On security for costs, although the applicants had limited links with Australia and there were concerns about assets and bona fides, the evidence did not justify the inferences advanced by the second and third respondents. Given the applicants' undertakings to give notice of address changes and overseas travel, the security for costs motion was adjourned sine die with liberty to apply.

Jurisdiction
Australia
Judgment Date
09 May 1995
Procedural Posture
Federal Court Civil Proceedings by Application and Statement of Claim / Interlocutory Motions by the Second and Third Respondents for Security for Costs and to Strike Out the Applicants' Statement of Claim Against Them
Outcome
The security for costs motion was adjourned sine die with liberty to apply; the strike-out motion was granted and the applicants were given leave to re-plead against the second and third respondents.
Legal Topics
['security for Costs' 'strike Out of Pleadings' 'leave to Re Plead' 'undertakings' 'costs Reserved']
['civil Procedure'] ['security for Costs' 'strike Out of Pleadings' 'leave to Re Plead' 'undertakings' 'costs Reserved']

Case Brief

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Procedural Posture

Federal Court Civil Proceedings by Application and Statement of Claim / Interlocutory Motions by the Second and Third Respondents for Security for Costs and to Strike Out the Applicants' Statement of Claim Against Them

Legal Issues

  1. 1 ["Whether the applicants should be ordered to provide security for the second and third respondents' costs." "Whether the applicants' statement of claim against the second and third respondents should be struck out for deficient pleading." 'Whether undertakings as to notice of changes of residential address and proposed overseas travel were sufficient to address concerns about costs enforcement.']

Ratio Decidendi

The applicants' pleading against the second and third respondents was deficient because it did not fairly disclose the cause of action, material facts, and issues of fact and law, so it was struck out with leave to re-plead. On security for costs, although the applicants had limited links with Australia and there were concerns about assets and bona fides, the evidence did not justify the inferences advanced by the second and third respondents. Given the applicants' undertakings to give notice of address changes and overseas travel, the security for costs motion was adjourned sine die with liberty to apply.

Court Disposition

The security for costs motion was adjourned sine die with liberty to apply; the strike-out motion was granted and the applicants were given leave to re-plead against the second and third respondents.

Orders

  • ["The second and third respondents' motion for security for costs be adjourned sine die." "The second and third respondents be granted liberty to apply, upon giving three days' notice in writing to the applicants, to bring the motion on." 'Costs be reserved on the security for costs motion.' "The second and third...