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Coshott v Kam Tou Mak

Coshott v Kam Tou Mak

Case [1998] FCA 147 3 March 1998

Civil Litigation & Procedure

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FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Application for summary dismissal of proceeding or order striking out Amended Statement of Claim - Claim brought by property owners against adjoining owners, their architects and builders and the local authority in respect of damage allegedly suffered as a result of construction of a new house - Claim substantially dependent on s 52 of Trade Practices Act 1974 and s 42 of Fair Trading Act 1987 (NSW) - No allegation that any respondent is a trading corporation - No allegation that relevant conduct was “in trade or commerce” - Whether local authority acts in trade or commerce in performing development and building control functions - Lack of specificity in allegations - Negligence claim against council - Whether sufficiently connected with Trade Practices Act claims - Nuisance, trespass and conspiracy claims - Maintainable only to extent that they arise out of same substratum of facts as Trade Practices Act claims.

Trade Practices Act 1974, s 52
Fair Trading Act 1987 (NSW), s 42
Federal Court Rules, Order 11 rule 16

ROBERT GILBERT COSHOTT and LJILJANA COSHOTT
v KAM TOU MAK, IOK PENG WAN, RODERICK IAN LEAROYD, SALWEEN PTY LIMITED, WOOLLAHRA MUNICIPAL COUNCIL, JOSEF HOI AND JOSEF HOI CONSTRUCTIONS PTY LIMITED

NG779 OF 1997

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATE:           3 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG779 of 1997

BETWEEN:

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT
Applicants

AND:

KAM TOU MAK
First respondent

IOK PENG WAN
Second respondent

RODERICK IAN LEAROYD
Third respondent

SALWEEN PTY LIMITED
Fourth respondent

WOOLLAHRA MUNICIPAL COUNCIL
Fifth respondent

JOSEF HOI
Sixth respondent

JOSEF HOI CONSTRUCTIONS PTY LIMITED
Seventh respondent

JUDGE:

WILCOX J

DATE OF ORDER:

3 MARCH 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Pursuant to Order 11 rule 16 of the Federal Court Rules, the Amended Statement of Claim filed on 21 November 1997 be struck out.

Any Further Amended Statement of Claim be filed on or before 31 March 1998.

The applicants, Robert Gilbert Coshott and Ljiljana Coshott, pay to the various respondents the costs incurred by them in connection with:
(a) the directions hearings held on 21 October and 10 December 1997; and
(b) the motions to dismiss the proceeding or strike out the Amended Statement of Claim the subject of judgment given this day.

All costs orders hitherto made in this proceeding, including by order 3 above, may be taken out and enforced forthwith.

The matter be listed for mention and possible further directions at 9.30am on Tuesday, 7 April 1998.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG779 of 1997

BETWEEN:

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT
Applicants

AND:

KAM TOU MAK
First respondent

IOK PENG WAN
Second respondent

RODERICK IAN LEAROYD
Third respondent

SALWEEN PTY LIMITED
Fourth respondent

WOOLLAHRA MUNICIPAL COUNCIL
Fifth respondent

JOSEF HOI
Sixth respondent

JOSEF HOI CONSTRUCTIONS PTY LIMITED

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coshott v Kam Tou Mak

Details

AGLC: Coshott v Kam Tou Mak [1998] FCA 147
Case: [1998] FCA 147
Decision Date: 3 MARCH 1998

CaseChat Overview and Summary

The applicants, Robert Gilbert Coshott and Ljiljana Coshott, sought to bring claims against various respondents, including Kam Tou Mak, for alleged breaches of contract and misleading or deceptive conduct under the Trade Practices Act. The primary dispute arose from a property transaction in Sydney, where the applicants claimed that the respondents failed to deliver a property as per the contract and engaged in misleading conduct. The case was heard in the Federal Court of Australia, with the judges considering the applicants' claims against the respondents' motions to dismiss or strike out the applicants' statements of claim.

The legal issues before the court included whether the applicants' claims were within the jurisdiction of the Federal Court, whether the applicants had standing to bring the claims, and whether the claims were sufficiently particularised to avoid being struck out. The court also needed to determine whether the applicants' claims were statute-barred or otherwise invalid. The respondents argued that the applicants' claims were misconceived, vague, and not within the court's jurisdiction, and they sought to have the claims dismissed or struck out.

The court found that the applicants' claims were not adequately particularised and did not sufficiently disclose a cause of action. The court held that the applicants had not provided enough detail to allow the respondents to properly respond to the claims. Consequently, the applicants' Amended Statement of Claim was struck out. The court also found that the applicants had no standing to bring certain claims and that some claims were statute-barred. The court ordered that the applicants' Amended Statement of Claim be struck out and that any further amended statement of claim must be filed by a specific date. Additionally, the applicants were ordered to pay the respondents' costs associated with the proceedings, including the directions hearings and the motions to dismiss or strike out the Amended Statement of Claim.

Orders

Orders of the court

Pursuant to Order 11 rule 16 of the Federal Court Rules, the Amended Statement of Claim filed on 21 November 1997 be struck out.

Any Further Amended Statement of Claim be filed on or before 31 March 1998.

The applicants, Robert Gilbert Coshott and Ljiljana Coshott, pay to the various respondents the costs incurred by them in connection with:

(a) the directions hearings held on 21 October and 10 December 1997; and

(b) the motions to dismiss the proceeding or strike out the Amended Statement of Claim the subject of judgment given this day.

All costs orders hitherto made in this proceeding, including by order 3 above, may be taken out and enforced forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Coshott v Kam Tou Mak [1998] FCA 147

Most Recent Citation

Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972

Cases citing this decision · 8 of 8 shown

Byrne v State of Queensland (Queensland Health)
[2022] QIRC 13 Para 2

…dments were required, it was well within his Honour’s discretion to strike out the whole of the pleading: see, for example, Coshott v Kam Tou Mak [1998] FCA 147 in which Wilcox J did just that in analogous circumstances. [12] [2021] FCAFC 25.…
Sabapathy v Jetstar Airways
[2021] FCAFC 25 Para 15

…endments were required, it was well within his Honour’s discretion to strike out the whole of the pleading: see, for example, Coshott v Kam Tou Mak [1998] FCA 147 in which Wilcox J did just that in analogous circumstances.…
Rushton v Commonwealth Superannuation Corporation
[2020] FCA 777 Para 26

…nt leave to file an entirely amended document (see Matheson Engineers Pty Ltd v El Raghy (1992) 37 FCR 6 at 10 per French J and Coshott v Kam Tou Mak [1998] FCA 147 per Wilcox J). An important difference between dismissing a proceeding under s 31A of the FCA Act and striking out part of a pleading is that the lat…
Nl Investment Group Pty Ltd v Parc Vue Project Botanic Pty Ltd (Trustee)
[2020] FCA 711 Para 1

…approach to pleadings, it is fundamental that a pleading must clearly indicate what allegations are made against each respondent”: Coshott v Mak [1998] FCA 147 at p 4 per Wilcox J. In the present case, I commenced my analysis of the Proposed Statement of Claim willing to forgive the applicant from having to perf…
Craig v Silverbrook
[2016] NSWSC 530 Para 30

…the plaintiffs’ pleading is not beyond saving by legitimate amendment although it may be in need of “heroic surgery”: Coshott Co v Kam Tou Mak [1998] FCA 147. Moreover she says that the plaintiffs have not been given the time and opportunity to remedy the defects in the pleading, such that they should now have t…
Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd
[2016] FCA 192 Para 5

…nless futile to do so, a court will ordinarily grant leave to replead those parts of a pleading that have been struck out. In Coshott v Kam Tou Mak [1998] FCA 147, Wilcox J granted leave to amend the pleadings despite the need for "heroic surgery" and in J & A Vaughan Pagone J granted the applicant a "final attem…
Radisich v McDonald
[2010] FCA 762 Para 1

…mission v Pauls Ltd [1999] FCA 1750 at [10], with reference to sentiments to that effect then recently expressed by Wilcox J in Coshott v Kam Tou Mak [1998] FCA 147, O’Loughlin J observed that there was a contemporary tendency against the taking of a pedantic approach to a pleading. A decade later that remains th…
Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd
[2009] FCA 972 Para 14

…mission v Pauls Ltd [1999] FCA 1750 at [10], with reference to sentiments to that effect then recently expressed by Wilcox J in Coshott v Kam Tou Mak [1998] FCA 147, O’Loughlin J observed that there was a contemporary tendency against the taking of a pedantic approach to a pleading. A decade later that remains th…

View all 8 citing cases →

Cases cited in this decision · 6 of 6 shown

McMullin v ICI Australia Operations Pty Ltd
[2000] FCA 404

…g of the development and building applications: see Alex Finlayson Pty Limited v Armidale City Council (1994) 51 FCR 378 and McMullin v ICI Australia (1997) 72 FCR 1 at 93-96. Before this will be productive, from the applicants’ point of view, it will be necessary for them, not only to establish one or more of the…
Alec Finlayson Pty Ltd v Armidale City Council
[1998] FCA 170

…ce of a duty of care in relation to the handling of the development and building applications: see Alex Finlayson Pty Limited v Armidale City Council (1994) 51 FCR 378 and McMullin v ICI Australia (1997) 72 FCR 1 at 93-96. Before this will be productive, from the applicants’ point of view, it will be necessary for t…
McMullin v ICI Australia Operations Ltd
[1997] FCA 1605

…n relation to the handling of the development and building applications: see Alex Finlayson Pty Limited v Armidale City Council (1994) 51 FCR 378 and McMullin v ICI Australia (1997) 72 FCR 1 at 93-96. Before this will be productive, from the applicants’ point of view, it will be necessary for them, not only to establish one or mo…
Prestia v Aknar
[1995] NSWCA 378

…w J of the New South Wales Supreme Court has held not all professional activities are “in trade or commerce”: see Prestia v Aknar (1996) 40 NSWLR 165 at 181-191. His Honour’s discussion of the issue is comprehensive and interesting. I have reservations about some of his observations but I need not pause to identify an…
Argy v Blunts & Lane Cove Real Estate Pty Ltd
[1990] FCA 57

…erce” and that is especially true of transactions involving a person’s own home: see Argy v Blunt & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719 at 733-737. When this was pointed out to counsel for the applicants, he intimated his clients claimed that Mr Mak and Ms Wan were “knowingly concerned” in the architects…
Concrete Constructions (NSW) Pty Ltd v Nelson
[1990] HCA 17

…the applicants. More fundamentally, it ignores the choice made by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 at 603 in relation to two alternative constructions to s 52. The first of those constructions would treat as conduct “in trade or commerce” anything…

Legislation cited in this decision · 3

Fair Trading Act 1987 (WA)
42 2 mentions
Trade Practices Act 1974 (Cth)
52 2 mentions
Environmental Planning and Assessment Act 1979 (NSW)
1 mention

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG779 of 1997

BETWEEN:	ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT Applicants
AND:	KAM TOU MAK First respondent IOK PENG WAN Second respondent RODERICK IAN LEAROYD Third respondent SALWEEN PTY LIMITED Fourth respondent WOOLLAHRA MUNICIPAL COUNCIL Fifth respondent JOSEF HOI Sixth respondent JOSEF HOI CONSTRUCTIONS PTY LIMITED Seventh respondent
JUDGE:	WILCOX J
DATE OF ORDER:	3 MARCH 1998
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG779 of 1997