Coshott v Barry - [2016] NSWCA 169

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Barry [2016] NSWCA 169
Hearing dates: 11 July 2016
Decision date: 15 July 2016
Before: Payne JA
Decision:
(1) The decision of the Registrar made on 4 May 2016 dismissing proceedings commenced by Mrs Coshott against Stephen Michael Barry and Martin Pearce Board, under r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) is set aside;
(2) Mrs Coshott pay the costs thrown away of the application to show cause heard on 4 May 2016 and this application;
(3) Mrs Coshott pay an amount of $22,000 into Court within 28 days of this judgment;
(4) If that amount is not paid into Court within 28 days of this judgment, the proceedings are stayed;
(5) The matter be referred to the Registrar for directions at 9.00am on Monday, 18 July 2016.

Catchwords: PRACTICE AND PROCEDURE – Notice of Motion – order sought setting aside decision of the Registrar to dismiss proceedings – costs dispute
Legislation Cited: Civil Procedure Act 2005 (NSW) s 3
Legal Profession Act 2004 (NSW) s 4
Legal Profession Uniform Law 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 13.6, 36.16 and 49.19
Cases Cited: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; 90 NSWLR 451
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
Wang v Farkas [2014] NSWCA 29; 85 NSWLR 390
Wilkie v Brown [2016] NSWCA 128
Category: Procedural and other rulings
Parties: Ljiljana Coshott (applicant)
Stephen Michael Barry (first respondent)
Martin Pearce Board (second respondent)
Representation:
Counsel:
Mr Wilson SC / Mr Spadijer (applicant)
Ms Castle (respondents)
Solicitors:
Comino Prassas (applicant)
CBK Associates Lawyers (respondents)

File Number(s): 2016/41754
Publication restriction: nil

Judgment

Payne JA: On 4 May 2016, the Registrar of the Court of Appeal made an order dismissing proceedings commenced by Mrs Coshott against Stephen Michael Barry and Martin Pearce Board, under r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) with costs.
Before the Court is a Notice of Motion dated 23 May 2016 filed on 1 June 2016 seeking the following orders:

the orders made on 4 May 2016 be set aside; and

the applicant pay the costs thrown away.

Brief facts

The history of these proceedings is an unhappy one.
The underlying proceedings concern costs orders sought and obtained by Mr Barry and Mr Board who are solicitors. Mr and Mrs Coshott conducted a number of legal proceedings in which Mr Barry and Mr Board represented them. The details of those proceedings and the subsequent disputes between Mr and Mrs Coshott and their former legal representatives are not presently relevant. What is relevant is that, ultimately, costs orders were made in favour of Mr Barry and Mr Board against Mr and Mrs Coshott.
Mr Coshott is now bankrupt. Mrs Coshott filed proceedings in the Common Law Division of this Court, file number 2010/234928, disputing her liability to pay Mr Barry and Mr Board’s costs.
Without rehearsing…

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 Coshott v Barry

Details

AGLC: Coshott v Barry [2016] NSWCA 169
Case: [2016] NSWCA 169
Decision Date: 15 July 2016

CaseChat Overview and Summary

In *Coshott v Barry*, the Court of Appeal of New South Wales considered an application by Mrs Coshott to set aside a decision of the Registrar to dismiss her proceedings against Stephen Michael Barry and Martin Pearce Board. The dispute concerned costs.

The primary legal issue before the Court was whether the Registrar's decision to dismiss the proceedings under rule 13.6 of the *Uniform Civil Procedure Rules 2005* (NSW) should be set aside. This involved determining whether the circumstances warranted interference with the Registrar's exercise of discretion.

Payne JA reasoned that the Registrar's decision to dismiss the proceedings was an error. The Court set aside the Registrar's decision and ordered that Mrs Coshott pay the costs thrown away of the application to show cause and the current application. Furthermore, Mrs Coshott was ordered to pay $22,000 into court within 28 days, failing which the proceedings would be stayed. The matter was then referred to the Registrar for directions.

Orders

Orders of the court

(1) The decision of the Registrar made on 4 May 2016 dismissing proceedings commenced by Mrs Coshott against Stephen Michael Barry and Martin Pearce Board, under r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) is set aside;

(2) Mrs Coshott pay the costs thrown away of the application to show cause heard on 4 May 2016 and this application;

(3) Mrs Coshott pay an amount of $22,000 into Court within 28 days of this judgment;

(4) If that amount is not paid into Court within 28 days of this judgment, the proceedings are stayed;

(5) The matter be referred to the Registrar for directions at 9.00am on Monday, 18 July 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Coshott v Barry [2016] NSWCA 169
Hearing dates:	11 July 2016
Decision date:	15 July 2016
Before:	Payne JA
Decision:	(1) The decision of the Registrar made on 4 May 2016 dismissing proceedings commenced by Mrs Coshott against Stephen Michael Barry and Martin Pearce Board, under r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) is set aside; (2) Mrs Coshott pay the costs thrown away of the application to show cause heard on 4 May 2016 and this application; (3) Mrs Coshott pay an amount of $22,000 into Court within 28 days of this judgment; (4) If that amount is not paid into Court within 28 days of this judgment, the proceedings are stayed; (5) The matter be referred to the Registrar for directions at 9.00am on Monday, 18 July 2016.
Catchwords:	PRACTICE AND PROCEDURE – Notice of Motion – order sought setting aside decision of the Registrar to dismiss proceedings – costs dispute
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 3 Legal Profession Act 2004 (NSW) s 4 Legal Profession Uniform Law 2015 (NSW) Uniform Civil Procedure Rules 2005 (NSW) rr 13.6, 36.16 and 49.19
Cases Cited:	eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; 90 NSWLR 451 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 Wang v Farkas [2014] NSWCA 29; 85 NSWLR 390 Wilkie v Brown [2016] NSWCA 128
Category:	Procedural and other rulings
Parties:	Ljiljana Coshott (applicant) Stephen Michael Barry (first respondent) Martin Pearce Board (second respondent)
Representation:	Counsel: Mr Wilson SC / Mr Spadijer (applicant) Ms Castle (respondents) Solicitors: Comino Prassas (applicant) CBK Associates Lawyers (respondents)
File Number(s):	2016/41754
Publication restriction:	nil