Coshott v Burke

[2017] FCAFC 230

FEDERAL COURT OF AUSTRALIA

Coshott v Burke [2017] FCAFC 230

Appeal from:

Fewin Pty Ltd v Burke (No 3) [2017] FCA 693

File numbers:

NSD 1137 of 2017

Judges:

LOGAN, KERR & FARRELL JJ

Date of judgment:

22 November 2017

Catchwords:

COSTS – appeal against lump sum costs orders – application for leave to amend Notice of Appeal to raise grounds not raised before the primary judge – whether interests of justice require application to be granted – whether prejudice to the respondent – application for leave to amend Notice of Appeal refused

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43

Cases cited:

Coshott v Crouch [2017] FCAFC 135

Coulton v Holcombe (1986) 162 CLR 1

Date of hearing:

22 November 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

22

Solicitor for the First Appellant:

Murphy Lyons Solicitors

Counsel for the Second Appellant:

The Second Appellant appeared in person

Counsel for the First Respondent:

Mr JT Johnson

Solicitor for the First Respondent:

JP Miskell & Associates

Counsel for the Second and Fourth Respondents:

Mr MJ Heath

Solicitor for the Second and Fourth Respondents:

Australian Government Solicitor

Counsel for the Third Respondent:

Ms M Castle

Solicitor for the Third Respondent:

Gillis Delany Lawyers

Counsel for the Fifth Respondent:

The Fifth Respondent filed a submitting notice

Counsel for the Sixth Respondent:

The Sixth Respondent filed a submitting notice

ORDERS

NSD 1137 of 2017

BETWEEN:

RONALD MICHAEL COSHOTT

First Appellant

ROBERT GILBERT COSHOTT

Second Appellant

AND:

CHRISTOPHER JOHN BURKE

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

MAXWELL WILLIAM PRENTICE (and others named in the Schedule)

Third Respondent

JUDGES:	LOGAN, KERR & FARRELL JJ
DATE OF ORDER:	22 NOVEMBER 2017

THE COURT ORDERS THAT:

1.Leave, in respect to the grounds identified as the grounds in the notice of appeal, be refused.

2.Leave to amend the notice of appeal, so as to raise the issue identified in paragraphs 16 to 25 of the appellant’s outline of submissions, be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(EX TEMPORE – REVISED FROM TRANSCRIPT)

LOGAN J:

1. It emerged from the written submissions made on behalf of the respondent parties and, responsive to that, from questions put by the Court and oral submissions thereby received, both from the appellants and the respective respondents, that there were particular points raised in the notice of appeal which were not taken before the primary judge.  There is, further, apart from grounds identified in the notice of appeal, another issue which is raised in the written submissions, but which is neither identified as a ground of appeal, nor one which was raised below.  It is necessary, also, to deal with what is to become of that issue.  That has become the subject of an application by the appellants for leave to amend its notice of appeal. 

2. The jurisdiction being exercised…