Barry v Coshott (No.3)

[2011] FMCA 541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRY v COSHOTT (No.3) [2011] FMCA 541

BANKRUPTCY – Creditor’s petition – further adjournment to allow settlement efforts in related Federal Court proceedings.

Bankruptcy Act 1966 (Cth), s.52(5)

Barry v Coshott (No.2) [2011] FMCA 228
Barry v Coshott [2010] FMCA 930

Applicant: STEPHEN MICHAEL BARRY

Respondent: LJILJANA COSHOTT

File Number: SYG 1738 of 2010

Judgment of: Smith FM

Hearing date: 5 July 2011

Delivered at: Sydney

Delivered on: 5 July 2011

REPRESENTATION

Counsel for the Applicant: Mr J Johnson

Solicitors for the Applicant: Sally Nash & Co.

Counsel for the Respondent: Mr S Bliim

ORDERS

1. Pursuant to s.52(5) of the Bankruptcy Act 1966 (Cth), the period at the expiration of which the petition will lapse shall be the period of 24 months commencing on the date of the presentation of the petition.

2. Any application to amend the petition and any affidavits in support must be filed and served no later than 4pm on 19 July 2011.

3. Any affidavits in response, or in support of a further adjournment application must be filed and served no later than 4pm on 27 July 2011.

4. The petition is adjourned for further hearing on 1 August 2011 at 10.15am.

5. Costs reserved.

6. 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)

1. This is the fourth contested adjournment application which I have conducted in this creditor’s petition since it was referred to me by the Registrar.  The background is found in two judgments I have published (see Barry v Coshott [2010] FMCA 930, and Barry v Coshott (No.2) [2011] FMCA 228).

2. As I indicated on the last occasion, I was satisfied that efforts to procure an annulment of Mr Coshott’s bankruptcy in the course of Federal Court proceedings should be allowed to come to fruition according to the terms of a settlement which were recorded in orders made by Rares J on 30 March 2011. Those orders have been subsequently amended, but the gist of them remained the same up until 28 June 2011. 

3. In short, the settlement projected the full payment out of all of Mr Coshott’s creditors who had been admitted to participate in his bankruptcy, with interest.  This includes the present petitioner against Mrs Coshott in relation to essentially the same joint indebtedness which is relied in the present petition.  Mr Barry has not sought to amend the petition to rely on any separate indebtedness of Mrs Coshott.  The present supporting creditors appear to be in a similar position. 

4. The settlement noted by Rares J on 30 March 2011 involved the raising of money by Mr and Mrs Coshott’s sons from the Commonwealth Bank, by way of security provided on the family home at Bellevue Hill, on the basis that either they had beneficial title to that house as trustees of family trusts, or…