Barry v Coshott (No.2) - [2015] FCCA 2108

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRY & ANOR v COSHOTT (No.2)

[2015] FCCA 2108

Catchwords:
PRACTICE AND PROCEDURE – Recusal – apprehension of bias.

Legislation:

Bankruptcy Act 1966 (Cth), s.49

Coshott v Prentice [2015] FCCA 241

Applicants:

STEPHEN MICHAEL BARRY AND MARTIN PEARCE BOARD

Respondent:

LILJANA COSHOTT

Supporting Creditors:

MAXWELL WILLIAM PRENTICE, STEPHEN MICHAEL BARRY (IN RELATION TO CERTAIN ADDITIONAL DEBTS) AND RUI OLIVEIRA

File Number:

SYG 1846 of 2014

Judgment of:

Judge Driver

Hearing date:

5 August 2015

Delivered at:

Sydney

Delivered on:

5 August 2015

REPRESENTATION

Solicitors for the Applicant:

Mr J Merewether of Merewether & Co

Counsel for the Respondent:

Mr A Cheshire, with Ms C Goodhand

Solicitors for the Respondent:

Martin Place Lawyers

Counsel for the Supporting Creditors:

Mr J T Johnson

Solicitors for the Supporting Creditors:

O’Neill Partners incorporating Sally Nash & Co

ORDERS

Judge Driver recuses himself from further involvement in these proceedings.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1846 of 2014

STEPHEN MICHAEL BARRY AND MARTIN PEARCE BOARD

Applicants

And

LILJANA COSHOTT

Respondent

MAXWELL WILLIAM PRENTICE, STEPHEN MICHAEL BARRY (IN RELATION TO CERTAIN ADDITIONAL DEBTS) AND RUI OLIVEIRA

Supporting creditors

REASONS FOR JUDGMENT

(Revised from transcript)

This matter is part-heard from 18 June 2015. I have made numerous rulings in the course of lengthy proceedings against the respondent (Ms Coshott) for a sequestration order, and the proceedings have reached the point where I was satisfied that prima facie a sequestration order ought to be made against her estate save for consideration of matters raised in opposition to the petition. I have made rulings on all of those issues save for the issue of solvency.
When the matter was before me on 18 June, I gave leave for the then petitioning creditor to withdraw and made orders pursuant to s.49 of the Bankruptcy Act 1966 (Cth) that the current creditors be substituted. The proceedings then continued over the objections of counsel for Ms Coshott who sought an adjournment. I made it clear to the representatives on 18 June that the position of Ms Coshott on solvency appeared hopeless because there was no evidence from her going to the issue of solvency.
The only available evidence was that provided by Ms Coshott’s brother-in-law, Mr Ronald Michael Coshott. I made clear that I would not regard his evidence as satisfying the question of solvency without hearing from Ms Coshott herself. After a short adjournment, she was made available and gave oral evidence. It became plain during her cross-examination that, to a large extent, she has placed her affairs into the hands of Mr Coshott and is dependent upon him for funds to meet her liabilities.
This brought into sharp focus the question of the continuing willingness of Mr Coshott to provide that assistance and the basis of it. Ms Coshott seemed to have some difference in understanding of the basis for Mr Coshott’s assistance in recent times. The matter was adjourned part-heard on 18 June to resume today. Between 1 July and 31 July…

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 (No.2)

Details

AGLC: Barry v Coshott (No.2) [2015] FCCA 2108
Case: [2015] FCCA 2108
Decision Date: 5 August 2015

CaseChat Overview and Summary

Barry (the applicant) sought an order for possession of a property against Coshott (the respondent). The dispute concerned the respondent's continued occupation of the property after the applicant had terminated the licence under which the respondent had been permitted to reside there. The applicant contended that the respondent was a bare licensee whose licence had been validly revoked, and therefore, the respondent had no legal right to remain in possession. The respondent, however, argued that the licence was coupled with an interest, or that the revocation was invalid, or that the applicant was estodden from revoking the licence. The matter came before Judge Driver in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the respondent's occupation of the property was based on a licence that was revocable at the will of the applicant, or whether it was a licence coupled with an interest, or otherwise irrevocable. This determination was crucial to establishing whether the applicant was entitled to an order for possession. The Court also considered whether the applicant was estopped from revoking the licence, and if the revocation itself was validly effected.

Judge Driver found that the respondent's occupation was based on a bare licence, which was revocable at the will of the applicant. His Honour reasoned that the licence was granted for the respondent's personal convenience and did not create any proprietary interest in the land. The Court rejected the argument that the licence was coupled with an interest, as there was no underlying legal right or estate that the licence was ancillary to. Furthermore, the Court found no basis for an estoppel, as the respondent had not acted to his detriment in reliance on any representation by the applicant that the licence would not be revoked. The revocation was therefore valid.

The Court made orders for possession of the property in favour of the applicant.

Orders