Coshott v Barry (No 3)
[2012] NSWSC 1248
•18 October 2012
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 2005Cases 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 236Category: 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 question in this Court under Rule 36.15 is apparent. It provides:
"36.15 General power to set aside judgment or order
(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent."
Why an application under this Rule has not been made to the Local Court and the District Court, on the basis of the claimed irregularities which Mrs Coshott now wishes to pursue in these proceedings in relation to the judgments of those Courts, was not able to be explained. To the contrary, she had made an application to the Local Court for the relief which she also pressed in this Court by way of motion. However, that motion was dismissed by the Local Court when there was no appearance by Mrs Coshott, who had decided instead to approach this Court for urgent relief, but had not adequately communicated her decision to either the defendants, or the Local Court.
For the defendants it was acknowledged that one of the judgments in issue does contain an error which ought to be rectified by an approach to the Local Court under Rule 36.15, on the basis discussed by Ward J in Kassem & Secatore (as Joint liquidators of Pan Pacific Age care Services Pty Ltd (in liq)) v Koutavas [2012] NSWSC 236. The conditions of the stay I propose to grant, should reflect this concession.
Also to be considered is that in respect of two of the certificates to which the judgments in issue relate, Mrs Coshott has already been heard by McCallum J (see Coshott v Barry [2012] NSWSC 850). There her Honour observed:
"5 On 6 May 2011, Buddin J made an order pursuant to part 28.2 of the Uniform Civil Procedure Rules 2005 that part of the relief sought in the proposed further amended summons (subsequently filed in court on 3 June 2011) be determined separately. The defendants very fairly agreed not to seek to enforce the costs assessments pending the determination of those separate issues.
6 The relief ordered to be heard separately is:
1. A declaration that each of the certificates of determination in question is ultra vires and that the costs assessors had no jurisdiction to issue them.
2. An order that each of the certificates of determination be set aside and that any judgments entered on any of those certificates of determination be set aside or permanently stayed.
5. An order that the defendants be restrained from seeking to enforce any of the certificates and/or judgments referred to in orders 1 and 2 above pending final determination of the proceedings.
7 This judgment determines those parts of Mrs Coshott's claim."
Her Honour concluded that the two judgments she was dealing with were properly obtained and not liable to be set aside. She later declined an application to reconsider her conclusions (see Coshott v Barry (No 2) [2012] NSWSC 944). That Mrs Coshott is now entitled to pursue another basis upon which order 5 of her second further amended summons might rest in respect of these judgments was disputed, it appears for good reason. Mrs Coshott has been heard. That she is now entitled to advance yet another basis for relief under order 5, is not readily apparent.
Mrs Coshott's second further amended summons was recently filed by consent and raises in order 2A another judgment not dealt with by McCallum J. That Mrs Coshott has a prima facie case in relation to the irregularity which she now wishes to pursue in relation to the certificates on which that judgment and the other judgments already dealt with by McCallum J is debatable, it seems to me, but in the face of the concession which has been made by the defendants in relation to the stay, that is not a basis for refusing the stay which Mrs Coshott seeks on appropriate terms.
The balance of convenience clearly favours that a stay only be granted on such terms. The proceedings were commenced in 2010, when Garling J dismissed the initiating summons in part, accepting that the defendants had established that it involved an abuse of process (see Coshott v Barry [2010] NSWSC 1324). In relation to other of the judgments in question, that conclusion was not reached even though in respect of two of the judgments, an appeal to the District Court had been dismissed by consent with orders in favour of the defendants. The case which Mrs Coshott sought to pursue then in relation to judgments now again in question, was that the costs assessor's decisions were ultra vires. It was in the face of this claim that Garling J concluded that the General Steel test had not been satisfied by the defendants (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636).
By s 372 of the Legal Profession Act 2004 it is provided that a costs assessor's determination is binding on the parties and no appeal lies from such a determination, except as there provided. Garling J concluded that this did not remove this Court's jurisdiction to grant relief by way of declaration or certiorari, in respect of the ultra vires claim. The same conclusion does not necessary follow in respect of the new arguments which Mrs Coshott now seeks to pursue in relation to the certificates, given what has transpired in these proceedings in the meantime.
Garling J took the view in 2010, that directions should be given which would ensure that the case was heard promptly. That has certainly not eventuated, given the course Mrs Coshott has since pursued.
In the result I am satisfied that as a matter of justice between these parties a 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. I will then relist the matter and give directions as to the steps which should now be taken to ready this matter for final hearing.
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Decision last updated: 18 October 2012
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