Barry v Coshott

Case [2014] NSWDC 51

District Court


New South Wales

Medium Neutral Citation: Barry v Coshott [2014] NSWDC 51
Hearing dates:7 February; 5, 10, 12 March 2014
Decision date: 13 March 2014
Jurisdiction:Civil
Before: P Taylor SC DCJ
Decision:

(1) Dismiss the notice of motion by Mrs Coshott (filed 19 December 2013) to set aside the registration of the certificate by reason of Mr Coshott's bankruptcy.

(2) Order Mrs Coshott to pay the plaintiffs' costs of that motion.

(3) Order the removal of Mr Coshott as a party to the proceedings.

(4) Direct Mrs Coshott to file and serve any evidence and submissions upon which she relies by 4pm on 25 March 2014 on the question of the amount of any interest up to the date of filing payable to the plaintiffs, on the unpaid costs in the filed certificate, and on the costs of the application by the plaintiffs.

(5) Direct any submissions and evidence in response be filed and served by the plaintiffs by 4pm on 28 March 2014.

(6) Stand the matter over to 1 April 2014 at 10am part head for further hearing before Judge P Taylor SC.

(7) Reserve all questions of costs of the application by the plaintiffs.

Catchwords: PROCEDURE - costs - recovery by solicitor - certificate of assessment - joint clients - one client bankrupt - whether filed certificate valid - effect on other client - interest
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58, s 62
Civil Procedure Act 2005, s 56, s 63, s 133
Interpretation Act 1987, s 34, s 35
Legal Profession Act 1987, s 3, s 173, s 190, s 208E, s 208J, s 208V
Legal Profession Act 2004, s 321
Uniform Civil Procedure Rules 2005, r 6.20, r 6.21, r 6.22, r 6.23, r 6.29, r 36.11, r 36.15, r 36.16, r 36.17
Cases Cited: ANZ Banking Group Ltd v Computer Plus [1992] 1 VR 607
Bank of Australasia v Whitehead (1898) 24 VLR 308
Coshott v Barry & Anor [2012] NSWSC 850
Coshott v Barry & Anor (No 2) [2012] NSWSC 944
Coshott v Barry (No 3) [2012] NSWSC 1248
Deighton v Cockle [1912] 1 KB 206
Doran v Isaacs (1912) 12 SR (NSW) 699
Doyle v Hall Chadwick [2007] NSWCA 159
Drummond and Rosen Pty Ltd v Easey and Ors (No 2) [2009] NSWCA 331
Ellis v Fisher [2001] VSC 621
Fraser v Commissioner of Taxation (1996) 69 FLR 99
Fraser Property Developments Pty Ltd v Sommerfeld (No 2) [2005] QCA 242
Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172
Gertig v Davies [2003] SASC 86
Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566
Hedwan v Hannouf (1997) 140 FLR 229
Kassem & Secatore (as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq)) v Koutavas [2012] NSWSC 236
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Scope Data Systems Pty Ltd v David Goman Rep Partnership Bdo Nelson Parkhill [2008]…

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AGLC
Barry v Coshott [2014] NSWDC 51
Case
[2014] NSWDC 51
Decision Date

CaseChat Overview and Summary

The case of Barry v Coshott involves a dispute over the recovery of legal costs by a solicitor, who is seeking payment from the defendants, Mr and Mrs Coshott. The legal dispute arose in the Federal Circuit Court of Australia. The key issue before the court was whether a certificate of assessment, which the solicitor filed in an attempt to recover costs from the defendants, was validly issued given that one of the defendants had become bankrupt. This had implications for the other defendant, Mrs Coshott, who was jointly liable for the costs.

The court needed to determine if the certificate of assessment filed by the solicitor was valid despite the bankruptcy of one of the defendants. The court also had to consider the effect of the bankruptcy on the other defendant, Mrs Coshott, and whether she was still liable for the costs. Additionally, the court needed to address the issue of interest on the unpaid costs in the filed certificate up to the date of filing.

In its decision, the court dismissed the notice of motion by Mrs Coshott to set aside the registration of the certificate due to her husband's bankruptcy. The court found that the filing of the certificate was valid and that Mrs Coshott remained liable for the costs. The court ordered Mrs Coshott to pay the plaintiffs' costs of the motion and directed her to provide evidence and submissions on the question of any interest payable on the unpaid costs and on the costs of the application by the plaintiffs. The court also ordered Mr Coshott to be removed as a party to the proceedings and reserved questions of costs of the application by the plaintiffs for a later date.

Orders

Orders of the court

(1) Dismiss the notice of motion by Mrs Coshott (filed 19 December 2013) to set aside the registration of the certificate by reason of Mr Coshott's bankruptcy.

(2) Order Mrs Coshott to pay the plaintiffs' costs of that motion.

(3) Order the removal of Mr Coshott as a party to the proceedings.

(4) Direct Mrs Coshott to file and serve any evidence and submissions upon which she relies by 4pm on 25 March 2014 on the question of the amount of any interest up to the date of filing payable to the plaintiffs, on the unpaid costs in the filed certificate, and on the costs of the application by the plaintiffs.

(5) Direct any submissions and evidence in response be filed and served by the plaintiffs by 4pm on 28 March 2014.

(6) Stand the matter over to 1 April 2014 at 10am part head for further hearing before Judge P Taylor SC.

(7) Reserve all questions of costs of the application by the plaintiffs.

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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