Barry v Coshott - [2010] FMCA 930

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRY v COSHOTT

[2010] FMCA 930

BANKRUPTCY – Creditor’s petition – entitlement to sequestration order not contested – pending proceedings in Federal Court concerning bankrupt estate of debtor’s spouse – prospects of mediated settlement with spouse’s trustee in bankruptcy – application for transfer of petition to Federal Court refused – petition adjourned.

Bankruptcy Act 1966 (Cth), ss.6A(2), 52, 52(2)(b), 54, 153A, 179
Civil Procedure Act 2005 (NSW), s.101
Federal Magistrates Act 1999 (Cth), ss.39(3), 39(3)(b), 39(3)(c), 39(3)(d)
Federal Magistrates Court Rules 2001 (Cth), r.8.02(4)

Adamopoulos v Olympic Airways SA & Anor (1990) 95 ALR 525
Coshott v Barry [2009] FCA 1521, (2009) 7 ABC(NS) 489
Coshott v Barry & Board [2010] NSWSC 1324

Coshott v Coshott (2010) 184 FCR 495, [2010] FCA 300

Coshott v Coshott (No.2) [2010] FCA 819

Shipton Lodge Cobbitty Pty Ltd v Coshott [2008] FMCA 1294

Shipton Lodge Cobbitty Pty Ltd v Coshott (No.2) [2008] FMCA 1552

Applicant:

STEPHEN MICHAEL BARRY

Respondent:

LJILJANA COSHOTT

File Number:

SYG 1738 of 2010

Judgment of:

Smith FM

Hearing date:

24 November 2010

Delivered at:

Sydney

Delivered on:

24 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

Sally Nash & Co.

Counsel for the Respondent:

Mr S Bliim

Counsel for Mr Rui Oliveira, Supporting Creditor:

Mr M Wang

Solicitors for the Supporting Creditor:

Wang Legal

ORDERS

The respondent has leave to file in court an application for transfer of the proceeding to the Federal Court, returnable instanter.
That application is refused.
The petition is adjourned for further hearing on 17 February 2011 at 10.15am.
The adjournment is given upon the condition that the respondent consents to an order that she shall file and serve before 4pm on 8 December 2010 an affidavit which attaches and verifies a statement of her affairs in the form approved for the purposes of s.6A(2) of the Bankruptcy Act. The affidavit must also identify each of her separate debts or liabilities, present or future, certain or contingent, which have not been accepted as proved as joint debts or liabilities in the bankruptcy of her husband Robert Coshott.
Any further application for adjournment or transfer of the proceeding, and all supporting affidavits, must be filed and served no later than 4pm on 28 January 2011.
The applicant must file and serve any affidavits in reply before 4pm on 10 February 2011.
Any party may request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 2 working days notice to the other parties.
The costs of today’s hearing in relation to the petition and interim applications are reserved.
The applicant must give a copy of this order to the Official Receiver within 2 working days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1738 of 2010

STEPHEN MICHAEL BARRY

Applicant

And

LJILJANA COSHOTT

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Barry brings this creditor’s petition against Mrs Coshott based on a judgment…

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 Barry v Coshott

Details

AGLC: Barry v Coshott [2010] FMCA 930
Case: [2010] FMCA 930
Decision Date

CaseChat Overview and Summary

The case of Barry v Coshott involves a creditor's petition filed by Stephen Michael Barry against Ljiljana Coshott, seeking a sequestration order. The dispute centres on the entitlement to a sequestration order, which is not contested by the respondent. The matter was before the Federal Magistrates Court of Australia, presided over by Smith FM. The court had to decide on the refusal of a transfer application for the petition to the Federal Court and the advisability of an adjournment of the hearing.

The legal issues primarily revolved around the conditions for transferring a proceeding to the Federal Court, as outlined in section 39(3) of the Federal Magistrates Act 1999 (Cth). The court also had to consider the implications of pending proceedings in the Federal Court concerning the bankrupt estate of the debtor’s spouse, and the prospects of a mediated settlement with the spouse’s trustee in bankruptcy.

Smith FM ruled that the application for transfer of the petition to the Federal Court was refused due to insufficient evidence and a lack of compelling reasons for the transfer. The court reasoned that the existing resources and procedures of the Federal Magistrates Court were adequate to handle the petition, and there were no special circumstances that warranted a transfer. Additionally, the interests of the administration of justice did not favour a transfer, as both courts could address the broad discretions in a similar manner. The court further noted that the applicant, Barry, opposed the transfer and sought expeditious resolution. The petition was adjourned for further hearing, conditioned on the respondent providing a statement of her affairs and demonstrating candour regarding her financial position.

This decision highlights the court's consideration of the practicalities and implications of transferring proceedings, balancing the interests of the parties involved and the administration of justice. The court emphasised the importance of providing adequate evidence to support applications for transfer or adjournment, ensuring that decisions are made based on substantive legal and factual grounds.

Orders