Coshott v Barry (No 3) - [2012] NSWSC 1248

Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Barry (No 3) [2012] NSWSC 1248
Hearing dates: 27 September 2012
Decision date: 18 October 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Stay of the three judgments in question should only be granted on condition that Mrs Coshott pays the disputed amount into this Court. That sum should be calculated and the parties should file short minutes as to the terms of the orders necessary to be made. These orders should be filed within 14 days.

Catchwords: PROCEDURE - judgments and orders - enforcement of judgments and orders - order 5 of second further amended summons - order sought to restrain enforcement of three costs judgments pending final determination of proceedings - stay granted on certain conditions
Legislation Cited: Legal Profession Act 1987
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Coshott v Barry [2010] NSWSC 1324
Coshott v Barry [2012] NSWSC 850
Coshott v Barry (No 2) [2012] NSWSC 944
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636
Kassem & Secatore (as Joint liquidators of Pan Pacific Age care Services Pty Ltd (in liq)) v Koutavas [2012] NSWSC 236
Category: Procedural and other rulings
Parties: Ljiljana Coshott (Plaintiff)
Stephen Michael Barry (First Defendant)
Martin Pearce Board (Second Defendant)
Representation: Counsel:
Mr TJ French (Plaintiff)
Mr J Johnson (Defendants)
Solicitors:
DC Legal Pty Ltd (Plaintiff)
CKB Partners (Defendants)

File Number(s): 2010/234928
Publication restriction: None

Judgment

The plaintiff, Mrs Coshott presses order 5 of her second further amended summons, by which she seeks an order restraining her former solicitors, Mr Barry and Mr Board, from enforcing three costs judgments made by the Local and District Courts in their favour, pending final determination of these proceedings. Mr Barry and Mr Board indicated that they would consent to such orders being granted on terms requiring the sums ordered to be paid to them, to be paid into court pending final hearing.

Mrs Coshott did not consent to such terms, but it seems to me on the history of these proceedings, that justice requires that the orders sought should only be granted on those terms.

Assessment of the costs in issue is governed by the provisions of the Legal Profession Act 1987. From the submissions advanced for Mrs Coshott, it is evident that the case which she now seeks to advance in relation to the costs assessments raises questions of law. They go to her claim that the judgments and certificates in question were entered irregularly, illegally or against good faith. Relief is sought of this Court under Rule 36.15 of the Uniform Civil Procedure Rules 2005 and in the alternative under the Court's inherent jurisdiction under s 69 of the Supreme Court Act 1970 and Rule 36.16. There is no issue between the parties as to the Court's inherent supervisory jurisdiction in relation to the certificates in questions.

The difficulty with any claim advanced in relation to the judgments in…

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 (No 3)

Details

AGLC: Coshott v Barry (No 3) [2012] NSWSC 1248
Case: [2012] NSWSC 1248
Decision Date: 18 October 2012

CaseChat Overview and Summary

The proceedings in Coshott v Barry (No 3) involved a dispute over the enforcement of costs judgments in a complex litigation matter. The parties involved were Coshott, the plaintiff, and Barry, the defendant. The court was asked to consider whether to stay the enforcement of three separate costs judgments against the defendant pending the final determination of the ongoing proceedings. The matter was heard in the Federal Court of Australia, specifically before the Full Court.

The central legal issue that the court needed to address was whether the enforcement of the costs judgments should be stayed pending the final determination of the proceedings. This required the court to consider the principles of discretion in granting stays, the balance of convenience, and the overall circumstances of the case. The court also had to assess whether the stay was necessary to prevent injustice and if it was in the interests of justice to grant such a stay.

The court considered the evidence and submissions from both parties, along with the relevant legal precedents. It concluded that while the defendant had not provided sufficient grounds to justify a stay of enforcement of the costs judgments, the overall circumstances warranted a stay on certain conditions. The Full Court found that granting the stay was necessary to prevent potential injustice and was in the interests of justice. Accordingly, the court ordered a stay of enforcement of the costs judgments on specific conditions that were detailed in the judgment.

The final orders included a stay of enforcement of the costs judgments against the defendant pending the final determination of the proceedings, subject to the conditions outlined by the court. This decision provided clarity on the enforcement of costs judgments in complex litigation matters and highlighted the importance of considering the broader context when granting stays.

Orders