Barry v Coshott (No.4) - [2011] FMCA 611

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRY v COSHOTT (No.4)

[2011] FMCA 611

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

Bankruptcy Act 1966 (Cth)

Barry v Coshott (No.3) [2011] FMCA 541

Applicant:

STEPHEN MICHAEL BARRY

Respondent:

LJILJANA COSHOTT

File Number:

SYG 1738 of 2010

Judgment of:

Smith FM

Hearing date:

1 August 2011

Delivered at:

Sydney

Delivered on:

1 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

Sally Nash & Co

Counsel for the Respondent:

Mr S Bliim

ORDERS

The petition and interim application filed on 18 July 2011 are adjourned for directions only on 20 September 2011 at 10.15am.
No orders as to costs of today’s listing, with the intent that the parties shall bear their own costs.
The applicant must give a copy of these orders 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)

This is now the fifth contested adjournment of this creditor’s petition, and I have given a series of judgments explaining my adjournments. In short, they have occurred to allow Mr and Mrs Coshott’s joint and separate liabilities to their creditors to be satisfied in the context of settlement negotiations occurring in two proceedings in the Federal Court before Rares J.
In my last judgment, I referred to my frustration at not being well informed as to what was occurring in those proceedings, and also to the waste of judicial time involved in continually holding half-day contested adjournment hearings.
The matter was subsequently listed before Rares J on 21 July 2011. I do have the advantage today of a transcript of what occurred on that occasion. Mr Barry, who is the petitioning creditor represented before me by Mr Johnson, appeared in person before Rares J. Mr Johnson appeared before Rares J for the Mr Coshott’s trustee, Mr Burke, who is a respondent in one of the proceedings before Rares J. The transcript shows that his Honour discussed with Mr Barry solutions to the impediment which had caused the previous adjournment, being a claimed lien by Mr Barry and his firm of solicitors on title documents over the property which was intended to provide security for the raising of funds to pay out all the creditors. As I understand the transcript, a formulation of words was agreed involving the payment into court of a sum to meet possible liabilities of Mr and Mrs Coshott which have not yet been fully assessed or tried. Mr Barry appears to have express acceptance of the terms that were subsequently forwarded to the parties by his Honour’s associate at the end of that proceeding. The proposed settlement therefore appeared able to be fully completed within days.
However, upon his Honour having arrived at what must have appeared to his Honour and to Mr and Mrs Coshott and their family as the…

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.4)

Details

AGLC: Barry v Coshott (No.4) [2011] FMCA 611
Case: [2011] FMCA 611
Decision Date: 1 August 2011

CaseChat Overview and Summary

Barry commenced proceedings against Coshott in the Federal Circuit Court. The nature of the dispute centred around issues of bankruptcy and insolvency, specifically relating to the administration of a bankrupt estate. The court was tasked with addressing matters arising from a petition and an interim application filed on 18 July 2011.

The court was required to decide on the procedural aspects of the case, particularly the need for directions concerning the petition and the interim application. The legal issues involved the interpretation and application of the relevant provisions of the Bankruptcy Act 1966 (Cth) in relation to the administration of the estate and the role of the Official Receiver. The court also needed to consider the costs associated with the proceedings.

In its decision, the court noted that the petition and interim application required further directions to manage the proceedings effectively. The court ordered that these matters be adjourned for directions only, to be heard on 20 September 2011 at 10.15am. The court also ruled that there would be no orders regarding the costs of the current listing, with the expectation that the parties would bear their own costs. Furthermore, the court mandated that the applicant must provide a copy of these orders to the Official Receiver within two working days.

Orders

Orders of the court

The petition and interim application filed on 18 July 2011 are adjourned for directions only on 20 September 2011 at 10.15am.

No orders as to costs of today’s listing, with the intent that the parties shall bear their own costs.

The applicant must give a copy of these orders to the Official Receiver within 2 working days.

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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