Viavattene v Morton [2011] NSWSC 1173

Viavattene v Morton [2011] NSWSC 1173

The statement of claim and annexures were struck out because the pleading consisted of unsupported assertions, lacked necessary particulars, did not allow the defendants to identify the case they had to meet, did not particularise damages, and was unintelligible, ambiguous, vague and too general, offending rules 14.7, 14.14, 14.20 and 15.1 of the UCPR. The proceedings were not immediately dismissed because a theoretically arguable trespass claim remained in relation to two incidents in November 2010. Security for costs was ordered because the second plaintiff resided outside New South Wales, both plaintiffs were impecunious, two previous costs orders had not been paid, the plaintiffs'...

Jurisdiction
Australia
Judgment Date
22 September 2011
Procedural Posture
Common Law Proceedings Concerning Alleged Trespass, Assault, Injunction, Damages and Compensation / Defendants' Notice of Motion to Strike Out Statement of Claim and for Security for Costs; Plaintiffs' Notice of Motion for Joinder
Outcome
Statement of claim and annexures struck out; security for costs ordered; proceedings stayed against the first and second defendants until security is provided; plaintiffs' joinder motion dismissed; proceedings to be dismissed with costs if security is not provided.
Legal Topics
['strike Out of Statement of Claim' 'defective Pleadings' 'particulars' 'security for Costs' 'stay of Proceedings' 'joinder' 'trespass' 'self Represented Litigants']
['civil Procedure' 'torts' 'costs'] ['strike Out of Statement of Claim' 'defective Pleadings' 'particulars' 'security for Costs' 'stay of Proceedings' 'joinder' 'trespass' 'self Represented Litigants']

Case Brief

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Procedural Posture

Common Law Proceedings Concerning Alleged Trespass, Assault, Injunction, Damages and Compensation / Defendants' Notice of Motion to Strike Out Statement of Claim and for Security for Costs; Plaintiffs' Notice of Motion for Joinder

Legal Issues

  1. 1 ["Whether the plaintiffs' statement of claim and annexures should be struck out for failure to comply with pleading requirements and for being unintelligible, ambiguous, vague and too general." 'Whether the proceedings should be dismissed as vexatious, an abuse of process, or disclosing no reasonable cause of action.' "Whether the plaintiffs should be ordered to provide security for the defendants' costs and whether the proceedings should be stayed until security is provided." "Whether the plaintiffs' notice of motion for joinder could proceed if the statement of claim was struck out."]

Ratio Decidendi

The statement of claim and annexures were struck out because the pleading consisted of unsupported assertions, lacked necessary particulars, did not allow the defendants to identify the case they had to meet, did not particularise damages, and was unintelligible, ambiguous, vague and too general, offending rules 14.7, 14.14, 14.20 and 15.1 of the UCPR. The proceedings were not immediately dismissed because a theoretically arguable trespass claim remained in relation to two incidents in November 2010. Security for costs was ordered because the second plaintiff resided outside New South Wales, both plaintiffs were impecunious, two previous costs orders had not been paid, the plaintiffs'...

Court Disposition

Statement of claim and annexures struck out; security for costs ordered; proceedings stayed against the first and second defendants until security is provided; plaintiffs' joinder motion dismissed; proceedings to be dismissed with costs if security is not provided.

Orders

  • ["The plaintiffs' statement of claim filed 17 May 2011 and annexures are struck out." 'The plaintiffs to provide security for the costs of the first and second defendants by paying the sum of $50,000 into Court on or before 11 November 2011.' 'The proceedings against the first and second defendants are stayed until...