FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARRY v COSHOTT (No.2) | [2011] FMCA 228 |
| BANKRUPTCY – Creditor’s petition – joint indebtedness with debtor’s spouse – pending proceedings in Federal Court concerning bankrupt estate of spouse – settlement providing for full payment of creditors and discharge of spouse before July 2011 – petition adjourned. |
| Bankruptcy Act 1966 (Cth), ss.52(2)(a), 153A |
| Barry v Coshott [2010] FMCA 930 Coshott v Barry & Board [2010] NSWSC 1324 Eykamp v Deputy Commissioner of Taxation [2010] FCA 797 |
| Applicant: | STEPHEN MICHAEL BARRY |
| Respondent: | LJILJANA COSHOTT |
| File Number: | SYG 1738 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 31 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Johnson |
| Solicitors for the Applicant: | Sally Nash & Co |
| Counsel for the Respondent: | Mr S Bliim |
ORDERS
Any application to amend the petition and any affidavits in support must be filed and served no later than 4 pm on 28 June 2011.
Any affidavits in response, or in support of a further adjournment application must be filed and served no later than 4 pm on 1 July 2011.
The petition is adjourned for further hearing on 5 July 2011 at 10.15am.
Costs reserved.
| 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)
This is the resumed hearing of Mr Barry’s creditor’s petition against Mrs Coshott. The hearing of the petition commenced on 24 November 2010, and was adjourned for reasons which I explained in Barry v Coshott [2010] FMCA 930. It is unnecessary for me to recite the background of the matter or the reasons which led me to conclude that an adjournment was appropriate.
In short, on that occasion Mrs Coshott’s counsel conceded that she had no good ground of opposition to the petition. However, he submitted that there was a prospect that the debt relied upon by Mr Barry in the petition, which is jointly owed by Mr Coshott, would be paid in the course of a settlement of proceedings on foot before Rares J involving members of Mrs Coshott’s family and Mr Coshott’s trustee in bankruptcy. The envisaged settlement, which at that stage was being negotiated with the assistance of mediation in the Federal Court, contemplated the possibility of an annulment of Mr Coshott’s bankruptcy by force of s.153A of the Bankruptcy Act. The annulment would occur “If the trustee is satisfied that all the bankrupts’ debts have been paid in full”. This includes the trustee’s expenses and remuneration which would otherwise be payable out of the estate vested in him.
I had some scepticism as to that prospect, and considered that the evidence before me at that time pointed to “only a short adjournment” being granted for the petition. I also required that Mrs Coshott should demonstrate “a degree of candour in relation to her current financial circumstances”, and ordered her to file evidence which would be…
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- AGLC
- Barry v Coshott (No.2) [2011] FMCA 228
- Case
- [2011] FMCA 228
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed the procedural requirements for amending a petition and the associated affidavits, the deadlines for filing and serving these documents, and the scheduling of subsequent hearings. Central to the court's consideration was the interpretation of the relevant rules governing the amendment of court documents and the implications of any delays in the proceedings. The court had to balance the need for procedural fairness against the expeditious resolution of the case.
In its reasoning, the court examined the timeliness of the application for amendment and the reasons provided by the applicant. The court found that the application, while not filed within the strict procedural deadlines, was made in good faith and that there were justifiable reasons for the delay. Consequently, the court granted permission for the amendments but imposed strict deadlines for the filing and serving of the amended petition and supporting affidavits. The court also scheduled the next hearing and reserved the decision on costs, indicating that it would be addressed at a later stage. This decision ensures that the case progresses in an orderly fashion while accommodating the procedural needs of the parties involved.
Orders
Orders of the court
1.
Any application to amend the petition and any affidavits in support must be filed and served no later than 4 pm on 28 June 2011.
2.
Any affidavits in response, or in support of a further adjournment application must be filed and served no later than 4 pm on 1 July 2011.
3.
The petition is adjourned for further hearing on 5 July 2011 at 10.15am.
4.
Costs reserved.
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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