Coshott v Burke - [2013] FCA 155

FEDERAL COURT OF AUSTRALIA
Coshott v Burke [2013] FCA 155

Citation: Coshott v Burke [2013] FCA 155

Parties: ROBERT GILBERT COSHOTT v JOHN CHRISTOPHER BURKE and THE OFFICIAL TRUSTEE IN BANKRUPTCY

File number: NSD 1208 of 2009

Judges: BUCHANAN J

Date of judgment: 25 February 2013

Legislation: Bankruptcy Act 1966 (Cth)

Date of hearing: 25 February 2013

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 12

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr J Johnson

Solicitor for the Respondent: Sally Nash & Co Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1208 of 2009

BETWEEN:
ROBERT GILBERT COSHOTT
Applicant

AND:
JOHN CHRISTOPHER BURKE
First Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

25 FEBRUARY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Upon the first respondent giving an undertaking to provide his files to the Official Trustee in Bankruptcy with respect to the estate of Robert Gilbert Coshott, a bankrupt, and otherwise cooperate with and assist the Official Trustee in Bankruptcy as reasonably required, pursuant to s 180 of the Bankruptcy Act 1966 (Cth) the Court accepts the resignation of the first respondent from the office of Trustee of the bankrupt estate of Robert Gilbert Coshott.
2.The cost of this application be a cost of the bankruptcy administration from 27 October 2009, when the claim was commenced, to 14 December 2012, when the amended statement of claim was filed.
3.These proceedings be otherwise dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1208 of 2009

BETWEEN:
ROBERT GILBERT COSHOTT
Applicant

AND:
JOHN CHRISTOPHER BURKE
First Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:

BUCHANAN J

DATE:

25 FEBRUARY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Procedural history

These proceedings were commenced by application on 27 October 2009. The application was that the first respondent be removed as trustee of the applicant’s estate under s 179 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”). A statement of claim was filed on 9 November 2009.
On 15 June 2010, Rares J commenced taking evidence in the application. The applicant gave evidence and was cross-examined. The first respondent gave evidence-in-chief and his cross-examination by the applicant commenced. At the end of proceedings on that day the first respondent remained under cross-examination. The proceedings were adjourned until 2 July 2010. The proceedings did not resume before Rares J. Rares J thereafter dealt with another issue concerning the applicant and then recused himself at the request of the applicant.
In due course the present application was transferred to my docket. On 22 November 2012, Mr Burke’s cross-examination recommenced. No amendment to the proceedings had been made. It became apparent during the course of Mr Burke’s further cross-examination that the case upon which the applicant wished to rely had become…

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 Burke

Details

AGLC: Coshott v Burke [2013] FCA 155
Case: [2013] FCA 155
Decision Date

CaseChat Overview and Summary

In the case of Coshott v Burke, the applicant, Robert Gilbert Coshott, sought the removal of John Christopher Burke from his position as trustee of his bankrupt estate, pursuant to section 179 of the Bankruptcy Act 1966 (Cth). The Official Trustee in Bankruptcy was also a party to the proceedings. The case was initiated by an application filed on 27 October 2009, and an amended statement of claim was filed on 14 December 2012. The key legal issues were whether Mr Burke should be removed from his position as trustee and, if so, who should replace him.

The Court found that Mr Burke's resignation as trustee was bona fide and not opposed by the parties. As a result, the Court accepted Mr Burke's resignation, making him no longer the trustee of Mr Coshott's estate. The Court considered the consents provided by three potential replacement trustees, Mr Maxwell Prentice, Mr Scott Pascoe, and Mr Daniel Cvitanovic. However, the Court decided not to appoint a new trustee, instead leaving the decision to the Official Trustee. The Court also ruled that the costs of the proceedings should be borne by the bankruptcy administration, from the date the claim was commenced until the amended statement of claim was filed.

The Federal Court of Australia, under Justice Buchanan, dismissed the proceedings with no further utility and ordered that Mr Burke's resignation as trustee be accepted. The Court also made orders concerning the costs of the proceedings and left the decision on appointing a new trustee to the Official Trustee.

Orders