Searle v Kearns & Ors [2001] NSWSC 679

Searle v Kearns & Ors [2001] NSWSC 679

The statement of claim failed to disclose a cause of action against the third, fourth and fifth defendants, with fatal defects in the pleading and procedural requirements not met, including lack of leave to sue the receiver. Therefore, the relevant paragraphs were struck out and indemnity costs were awarded to the affected defendants.

Parties
Plaintiff: Hilton George Searle; 1st Defendant: James Gordon Kearns; 2nd Defendant: SNOCO Limited (NZ); 3rd Defendant: Gordon McNichol Finlay; 4th Defendant: John Garrett; 4th Defendant: Andrew Walmsley; 4th Defendant: Warren Madgwick; 4th Defendant: Linda Madgwick; 5th Defendant: National Australia Bank (ACN 004 044 937); 6th Defendant: John Goldsworthy Poynten
Jurisdiction
Australia
Judgment Date
06 August 2001
Procedural Posture
Strike Out Application / Hearing and Orders on Strike Out Motions
Outcome
Paragraphs of statement of claim struck out against third, fourth and fifth defendants; these defendants removed as parties; indemnity costs awarded in their favour.
Legal Topics
Strike Out Application, Indemnity Costs, Proceedings Against Receiver, Pleading Deficiencies
Civil Procedure Equity Strike Out Application Indemnity Costs Proceedings Against Receiver Pleading Deficiencies

Case Brief

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Parties

Hilton George Searle

Plaintiff

James Gordon Kearns

1st Defendant

SNOCO Limited (NZ)

2nd Defendant

Gordon McNichol Finlay

3rd Defendant

John Garrett

4th Defendant

Andrew Walmsley

4th Defendant

Warren Madgwick

4th Defendant

Linda Madgwick

4th Defendant

National Australia Bank (ACN 004 044 937)

5th Defendant

John Goldsworthy Poynten

6th Defendant

Procedural Posture

Strike Out Application / Hearing and Orders on Strike Out Motions

Legal Issues

  1. 1 Whether the statement of claim should be struck out against third, fourth and fifth defendants for lack of a disclosed cause of action
  2. 2 Whether indemnity costs should be awarded against the plaintiff
  3. 3 Whether action against a receiver appointed by the Court can proceed without leave

Ratio Decidendi

The statement of claim failed to disclose a cause of action against the third, fourth and fifth defendants, with fatal defects in the pleading and procedural requirements not met, including lack of leave to sue the receiver. Therefore, the relevant paragraphs were struck out and indemnity costs were awarded to the affected defendants.

Court Disposition

Paragraphs of statement of claim struck out against third, fourth and fifth defendants; these defendants removed as parties; indemnity costs awarded in their favour.

Orders

  • Paragraphs 10 and 13.3 of the statement of claim struck out as against third defendant.
  • Third defendant awarded indemnity costs against the plaintiff for the notice of motion.