Coshott, Robert Gilbert & Anor v Mak, Kam Tou & Anor [1998] FCA 308

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG8258 of 1997

BETWEEN: ROBERT GILBERT COSHOTT

First applicant

LJILJANA COSHOTT

Second applicant

AND: KAM TOU MAK

First respondent

IOK PENG WAN

Second respondent

JUDGE: WILCOX J

DATE: 13 MARCH 1998

PLACE: SYDNEY

EXTEMPORE REASONS FOR JUDGMENT WILCOX J: When I dealt with matter NG 779 of 1997 on 3 March, I indicated a view about setting aside the bankruptcy notice or further extending time for compliance. At that time I overlooked the fact that a notice of motion had been filed in November, seeking to set aside the bankruptcy notice. That motion was formally brought before me today and Mr Harrison SC has argued I should grant relief in accordance with the application or, alternatively, further extend time for compliance with the bankruptcy notice. He correctly points out it is not necessary for his client to show the certainty, or even the strong probability, of success in any claim that it may succeed in properly framing against Mr Mak and Ms Wan; it is sufficient if there is a reasonable probability of success. Even so, I do not think the bankruptcy notice should be set aside or time for compliance extended. I do not wish to repeat the matters that were discussed in my reasons for judgment dated 3 March. Those reasons refer to the unsatisfactory way in which this case has been handled on behalf of Mr and Mrs Coshott. It seems they either cannot pay the costs ordered to be paid by the Land and Environment Court or are determined not to do so. In this connection it is relevant to note something I deliberately omitted from my previous reasons; that, during argument in matter NG 779 of 1997, counsel then appearing for Mr and Mrs Coshott indicated his clients would pay the money due in respect of the costs. I asked him whether his clients were prepared to give a formal undertaking about that matter. Counsel said he would get instructions and, if so, his instructing solicitors would fax a document signed by his client to my associate. They did not do so. In the light of the fact that counsel indicated an attitude, but then his clients would not give a formal undertaking, I can only assume they decided not to pay the amount unless compelled to do so. However, even if this be wrong, I have nothing before me that inculcates a belief they have a cause of action against Mr Mak and Ms Wan. Mr Harrison pointed to some evidence of cracking in the home of Mr and Mrs Coshott. There is no evidence as to the time when the cracking was first seen. A statement is made in an expert's report, (on instructions from Mr and Mrs Coshott), that the cracking did not pre-date the building work undertaken on the land of Mr Mak and Ms Wan. However, there is no evidence to that effect. Furthermore, the allegation made by Mr and Mrs Coshott in NG 779 of 1997 is that the building work was carried out by independent contractors. It is not clear to me on what basis Mr Mak and Ms Wan are said to be liable for any negligent construction or for nuisance suffered by Mr and Mrs Coshott or damage to their building as a result of the activities of two people, one a company, who are apparently independent contractors. The situation is totally unsatisfactory. Mr and Mrs Coshott have had several opportunities to put their claim (if any) in order. It is appropriate to take a generous view and allow a judgment debtor who claims a counter claim or set-off an opportunity to demonstrate that there is a viable claim, but Mr and Mrs Coshott have had opportunities; for some reason which is not apparent to me they have not availed themselves of them. I see no reason why there should be any further extension of the bankruptcy notice. I dismiss the application filed in NG 8258 of 1997. I order the applicants to pay the respondent's costs of that application.