Coshott v Coshott

Case [2016] FCA 966

FEDERAL COURT OF AUSTRALIA

Coshott v Coshott [2016] FCA 966

Review of: Coshott v Coshott (Federal Court of Australia, NSD 1412 of 2009, Registrar’s Determination dated 16 May 2016) 
File number: NSD 1412 of 2009
Judge: BROMWICH J
Date of judgment: 21 December 2016
Catchwords: PRACTICE AND PROCEDURE – application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) for review of Registrar’s determination of remuneration of statutory trustees for sale – associated challenge to power of primary judge to make orders delegating power to Registrar to make determination of remuneration for trustees for sale – de novo review of Registrar’s determination in Federal Court – where applicants for review did not participate at the hearing of the determination before the Registrar or put on any evidence or written submissions – where applicants sought second referral for second determination – held: application dismissed with costs
Legislation:

Bankruptcy Act 1966 (Cth), s 30

Conveyancing Act 1919 (NSW), ss 66F(2)(a), 66G, 66G(3)(a)

Evidence Act 1995 (Cth), ss 79, 135, 136

Federal Court of Australia Act 1976 (Cth), ss 23, 35A(5), 35A(6)

Judiciary Act 1903 (Cth), ss 79, 80

Cases cited:

Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

Australian Securities and Investments Commission v Letten (No 23) [2014] FCA 985

Australian Securities and Investments Commission v Letten(No 25) [2016] FCA 1127

Australian Securities and Investments Commission, Re Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 5) [2006] FCA 684; (2006) 58 ACSR 6

Bass v Permanent Trustee Company Limited [1999] HCA 9; (1999) 198 CLR 334

Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450

Doolan v Dare [2004] FCA 682; (2004) 2 ABC(NS) 16

Harris v Caladine (1991) 172 CLR 84

Ide v Ide [2004] NSWSC 751; (2004) 184 FLR 44

In the matter of Idyllic Solutions Pty Ltd as trustee for Super Save Superannuation Fund and others [2016] NSWSC 1292

Jackson v Sterling Industries Limited (1987) 162 CLR 612

Mohamed v Hurstville Tower Medical Clinic Pty Ltd (in liq) [2006] NSWSC 4

Pantzer v Wenkart [2006] FCAFC 140; (2006) 153 FCR 466

Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158

Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178

Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545

Wenkart v Pantzer [2005] FCA 1572; (2005) 223 ALR 384

West International Pty Ltd v Ultradrilling Pty Ltd [2008] FCA 1443; (2008) 68 ACSR 108

Date of hearing: 20 September 2016
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 66
Counsel for the Applicants on the Interlocutory Application: Mr G W McGrath SC with Mr S Spadijer
Solicitor for the Applicants on the Interlocutory Application: Comino Prassas
Counsel for the Respondent on the Interlocutory Application: Mr S Golledge
Solicitor for the Respondent on the Interlocutory…

Continue reading Coshott v Coshott

Sign in free to access the full text

Details
AGLC
Coshott v Coshott [2016] FCA 966
Case
[2016] FCA 966
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Coshott v Coshott involved an application by Robert and Ljiljana Coshott seeking a review of a Registrar's determination regarding the remuneration of statutory trustees for the sale of property. The primary issue before the court was whether the Registrar had the authority to delegate the power to determine the remuneration of the trustees, and if so, whether the determination made by the Registrar was correct. The court also had to consider whether the applicants' failure to participate in the original hearing before the Registrar affected the review process.

The court found that the Registrar did have the authority to make the determination as delegated by the primary judge, and that the applicants' failure to participate in the original hearing did not preclude the court from conducting a de novo review. The court examined the evidence provided by the trustees, including affidavits detailing the legal work performed, time records, and invoices for disbursements. Despite objections raised by the applicants, the court found that the evidence provided was sufficient to support the Registrar's determination.

Consequently, the court dismissed the application for review with costs. The determination made by the Registrar was confirmed, subject to any updates required regarding the amounts involved. The court requested the parties to provide written submissions and draft orders for any updates and further orders relating to the costs of the application. The final orders on the review and costs were to be made in chambers.

The court's decision underscored the importance of providing detailed evidence and participating in the proceedings to effectively challenge a determination. The court's confirmation of the Registrar's determination highlighted the authority of the Registrar to make such decisions when properly delegated by the primary judge.

Orders

Orders of the court

1. The interlocutory application by Robert Coshott and Ljiljana Coshott dated 20 May 2016 and filed on 25 May 2016 be dismissed with costs.

2. The determination made by the Registrar on 16 May 2016 be confirmed, subject to any updating of the amounts involved required as provided by order 3 below.

3. By 4.00 pm on Friday, 3 February 2017, or such other date as may be fixed, the parties provide any written submissions and draft orders of no longer than three (3) pages in relation to:

(a) any updating required of the amounts in the determination of the Registrar made 16 May 2016; and

(b) any further orders that should be made in relation to the payment of the costs of this application.

4. The parties may seek leave to file any further evidence upon which they seek to rely for the purposes of the submissions in order 3 above.

5. The final orders on the review of the Registrar’s determination and on costs be made in Chambers, subject to any submission being acceded to that a further hearing needs to take place.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As noted above, the Coshotts did not appear on the date fixed well in advance for the hearing of the determination before the Registrar, and did not, as provided for, furnish any submissions or evidence. Nor was any attempt made before me to do much more. Instead global and general objections were taken, including as to an asserted shortfall in particulars as to what was claimed, essentially making it a matter of onus for the Trustees for Sale to prove their entitlement to payment. This was, on any view, a very high risk strategy. The Coshotts were ultimately well represented and must be taken to have considered this was the best approach to advance their interests in all the circumstances.Evidence on the review The Trustees for Sale relied upon a number of affidavits, to which objection was taken upon the ground that asserted issues as to the weight of the evidence without more made good a claim of unfair prejudice for the purposes of ss 135 and 136 of the Evidence Act 1995 (Cth). That argument was not accepted and that objection was therefore overruled. The affidavits of the following deponents were read for the Trustees for Sale:(1)Stephen Keith Mullette, solicitor for the Trustees for Sale, sworn 20 November 2015, setting out charge out rates at his firm for individuals who have worked on the matter, producing detailed time records for the periods 19 September 2014 to 30 June 2015 and 1 July 2015 to 16 October 2015 and summarising disbursements;(2)Stephen Keith Mullette, sworn 30 November 2015, proving service of the preceding affidavit and the affidavit of one of the Trustees for Sale upon the Coshotts, the substance of which is reflected in the next affidavit referred to, along with some updated disbursement figures;(3)Stephen Keith Mullette, sworn 26 April 2016, detailing legal work performed since his first affidavit, being from 16 October 2015 onwards and including:(a)Annexure “A”: a schedule of the issues to which remuneration expenses relate which identifies in considerable detail the various collateral matters that the Trustees for Sale had to deal with, cross-referenced to the time records;(b)Exhibit SKM1: detailed time records kept by the solicitors for the Trustees for Sale which have been cross-referenced to the entries in Annexure “A” to enable the different types of work done to be tracked, invoices for disbursements for the same tracking purpose, all of which relate to the legal costs incurred by the Trustees for Sale; (c)Exhibit SKM2: detailed time records kept by the Trustees for Sale of the work they had conducted, also cross-referenced to the entries in Annexure “A” to enable the different types of work done to be tracked and invoices for disbursements for the same tracking purpose, all of which relate to the remuneration sought by the Trustees for Sale;(4)Nicholas Crouch (one of the Trustees for Sale), sworn 6 September 2016, producing updated detailed time records and invoices for disbursements. Both parties sought to rely on affidavits from asserted costs experts. Both affidavits failed to meet the requirements of s 79 of the Evidence Act as to identification and application of expertise. Both parties effectively conceded that they could not overcome these fundamental deficiencies. Both affidavits were rejected.

Decision

Reasons for decision

In all circumstances, I am unable to see any proper basis for disturbing the determination made by the Registrar. Conclusion The interlocutory application brought by the Coshotts must be dismissed with costs. The determination made by the Registrar is confirmed, subject to any updating required as to the amounts involved. I will hear from the parties in that regard and in relation to any particular orders that should be made in relation to the payment of the costs of this application.

Ratio Decidendi

Legal Principle Established

The orders for recompense of the Trustees for Sale and for the appointment of the Registrar to determine the amounts they should be paid, as in force at the time that the Registrar came to make that determination, were as follows in aid of considering the arguments of the parties below (emphasis added):Order 6 made 10 September 2013, after being set aside by the Full Court and substituted by Buchanan J on 19 September 2014:6.That Shabnam Amirbeaggi and Nicholas Crouch both of Crouch Amirbeaggi, Suite 403, 55 Lime Street, King Street Wharf, Sydney NSW 2000 and both registered Trustees in Bankruptcy be appointed Trustees for Sale (“Trustees for Sale”) and they be entitled to charge their remuneration at the rate set out in the rates attached to their Consent filed in these proceedings. Order 7 made 10 September 2013, after being varied on 19 September 2014: 7.The property be sold by the Trustees for Sale, with all the obligations and privileges pertaining thereto (including signing for and on behalf of the second cross-respondent any contract for the sale of land and any transfer pursuant to the Real Property Act 1900 (NSW) and determining the price at which the property is to be sold) and the proceeds after payment of all expenses of and incidental to such sale to be divided equally between the cross-claimant and second cross-respondent, pursuant to order 11. Order 6 made on 16 October 20156.A Registrar be appointed to determine the amounts to be paid to the Trustees for Sale pursuant to the orders of the Court made on 10 September 2013 and 19 September 2014 [necessarily as varied since being made], including:(a)in respect of the fees and disbursements (not including legal costs) payable to the Trustees for Sale pursuant to order 6 of the orders of the Court made on 10 September 2013 and substituted on 19 September 2014;(b)in respect of the legal costs of the Trustees for Sale (on a solicitor and own client basis) including pursuant to order 11.3 of the orders of 10 September 2013 and order 5 of the orders of the Court made on 19 September 2014. Orders 2, 3 and 4 made on 26 October 2015 in substitution for: order 11.5 originally made 10 September 2013 and varied on 23 July 2014 and 19 September 2014; and order 11.6 originally made on 10 September 20132.From the proceeds of sale of the property, the Trustees for Sale be entitled to deduct their remuneration, costs and expenses of acting as Trustees for Sale. 3.When reasonably practicable, the Trustees for Sale make interim and final distributions of the proceeds of sale to the cross-claimant and the second cross respondent, after taking account of any orders for the payment of money into Court, or the need to withhold money on account of any claim foreshadowed against the Trustees for Sale or on account of their further likely professional costs and disbursements. 4.The cross-claimants’ professional and legal costs of the proceedings (including the costs of the former Trustee in Bankruptcy) be paid from the proceeds of the sale of the half interest in the property vested in the cross-claimant.