Viavattene v Morton [2011] NSWSC 1173

Supreme Court New South Wales

Medium Neutral Citation: Viavattene v Morton [2011] NSWSC 1173 Hearing dates: 19/09/2011 and 21/09/2011 Decision date: 22 September 2011 Jurisdiction: Common Law Before: Latham J Decision: 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 security for costs is provided in accordance with order 2. If security for costs is not provided in accordance with order 2, the proceedings against the first and second defendants are to be dismissed with costs. Subject to satisfaction by the plaintiffs of order 2, the plaintiffs are to file and serve an amended statement of claim on or before 2 December 2011. The plaintiffs' notice of motion of 16 August 2011 is dismissed. Catchwords: PROCEDURE - application to strike out statement of claim - statement of claim defective - unsupported by particulars - unintelligible, ambiguous, vague and too general - order for security for costs - second plaintiff resides outside New South Wales - plaintiffs have not paid two previous cost orders - application for joinder cannot survive striking out of statement of claim. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Rajski v Scitec Corporation Pty Ltd (unreported) NSWCA 16 June 1986 Pethers v Minister for Agriculture [2010] NSWSC 805 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 Category: Principal judgment Parties: Beverley Viavattene - First Plaintiff Peter Viavattene - Second Plaintiff Bruce Morton - First Defendant Evelyn Birch - Second Defendant Representation: Counsel: Self Represented - Plaintiffs D Lambert - Defendants Solicitors: Self-represented - Plaintiffs Ellis & Baxter - Defendants File Number(s): 2011/162069