Coshott, Robert Gilbert & Anor v Mak, Kam Tou & Ors [1998] FCA 147

Coshott, Robert Gilbert & Anor v Mak, Kam Tou & Ors [1998] FCA 147

The Amended Statement of Claim was struck out because it was seriously deficient: it failed to plead that any respondent was a relevant corporation, failed to plead that the alleged conduct was in trade or commerce, made untenable Trade Practices Act and Fair Trading Act claims against the council in respect of public development and building control functions, lacked specificity as to which allegations were made against which respondents, and included State law claims not sufficiently connected with the federal claims. However, the proceeding was not dismissed because the applicants might still be able to plead properly amended claims concerning misleading conduct against the architects,...

Jurisdiction
Australia
Judgment Date
03 March 1998
Procedural Posture
Application for Summary Dismissal of Proceeding or Order Striking Out Amended Statement of Claim / Respondents' Notices of Motion Before Trial
Outcome
Amended Statement of Claim struck out; proceeding not summarily dismissed.
Legal Topics
['summary Dismissal' 'strike Out of Pleading' 'misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'development and Building Control Functions' 'accrued Jurisdiction' 'duty of Care by Council' 'costs']
['practice and Procedure' 'trade Practices' 'fair Trading' 'local Government' 'negligence' 'nuisance' 'trespass' 'conspiracy'] ['summary Dismissal' 'strike Out of Pleading' 'misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'development and Building Control Functions' 'accrued Jurisdiction' 'duty of Care by Council' 'costs']

Case Brief

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Procedural Posture

Application for Summary Dismissal of Proceeding or Order Striking Out Amended Statement of Claim / Respondents' Notices of Motion Before Trial

Legal Issues

  1. 1 ['Whether the proceeding should be summarily dismissed or the Amended Statement of Claim struck out in whole or in part.' 'Whether the Amended Statement of Claim adequately pleaded claims under s 52 of the Trade Practices Act 1974 and s 42 of the Fair Trading Act 1987 (NSW).' 'Whether any respondent was alleged to be a corporation within s 52 of the Trade Practices Act 1974.' 'Whether the pleaded conduct was alleged to be in trade or commerce.' 'Whether Woollahra Municipal Council acted in trade or commerce when performing development and building control functions.' 'Whether nuisance, trespass, conspiracy and negligence claims should remain in the Federal Court when dependent on State law.' 'Whether the applicants should receive another opportunity to plead properly amended claims.']

Ratio Decidendi

The Amended Statement of Claim was struck out because it was seriously deficient: it failed to plead that any respondent was a relevant corporation, failed to plead that the alleged conduct was in trade or commerce, made untenable Trade Practices Act and Fair Trading Act claims against the council in respect of public development and building control functions, lacked specificity as to which allegations were made against which respondents, and included State law claims not sufficiently connected with the federal claims. However, the proceeding was not dismissed because the applicants might still be able to plead properly amended claims concerning misleading conduct against the architects,...

Court Disposition

Amended Statement of Claim struck out; proceeding not summarily dismissed.

Orders

  • ['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...