Coshott v Coshott - [2015] FCA 1284

FEDERAL COURT OF AUSTRALIA
Coshott v Coshott [2015] FCA 1284

Citation: Coshott v Coshott [2015] FCA 1284

Parties:
JAMES COSHOTT and LJILJANA COSHOTT v ROBERT GILBERT COSHOTT and MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, A FORMER BANKRUPT

STEPHEN MICHAEL BARRY AND MARTIN PEARCE BOARD v LJILJANA COSHOTT, MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, A FORMER BANKRUPT and FEWIN PTY LTD ABN 64 051 132 453

File number(s): NSD 1412 of 2009

Judge(s): BUCHANAN J

Date of judgment: 23 November 2015

Catchwords: COSTS – solicitors’ lien exercised by possession of certificate of title – solicitors acted for clients on purchase of property as joint tenants – solicitors acted for clients on additional legal matters – client declared bankrupt – Court ordered certificate of title be delivered to Trustees for Sale, without prejudice – client argued lien extinguished by limitation period – lien not defeated by mere effluxion of time – lien is a passive and possessory right – certificate of title “goods” under Limitation Act 1969 (NSW), s 68(a) – lien remained valid and fully effective – lien not otherwise extinguished – solicitors entitled to costs, with interest where properly claimable

Legislation: Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Limitation Act 1969 (NSW), ss 63, 68, 68(a)

Cases cited: Beneficial Finance Corporation Ltd v Conway (No 2) [1971] VR 594
Chen v Gu; Chen v Nguyen [2011] NSWSC 1622
Coshott v Barry [2015] NSWCA 257; (2015) 299 FLR 306
Coshott v Barry & Anor [2012] NSWSC 850
Coshott v Prentice (2014) 221 FCR 450
Kanbur Pty Ltd v Adams (1984) 3 FCR 192
The Official Trustee in Bankruptcy v Kioussis [2000] NSWSC 248
White v Bini [2003] FCA 669

Date of hearing: 10 November 2015

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 30

Counsel for Applicants to Interlocutory Application: Ms M Castle with Mr A Bailey

Solicitor for Applicants to Interlocutory Application: CKB Associates Lawyers

Counsel for First Respondent to Interlocutory Application: Mr A P Cheshire SC

Solicitor for First Respondent to Interlocutory Application: Martin Place Lawyers

Counsel for Second Respondent to Interlocutory Application: The second respondent to the interlocutory application did not appear

Counsel for Third Respondent to Interlocutory Application: The third respondent to the interlocutory application did not appear

Counsel for First Applicant: The first applicant did not appear

Counsel for First Respondent: The first respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1412 of 2009

BETWEEN:
JAMES COSHOTT
First Applicant

LJILJANA COSHOTT
Second Applicant

AND:
ROBERT GILBERT COSHOTT
First Respondent

MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, A FORMER BANKRUPT
Second Respondent

BETWEEN:
STEPHEN MICHAEL BARRY AND MARTIN PEARCE BOARD
Applicant to Interlocutory Application

AND:
LJILJANA COSHOTT
First Respondent to Interlocutory Application

MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT…

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 Coshott

Details

AGLC: Coshott v Coshott [2015] FCA 1284
Case: [2015] FCA 1284
Decision Date: 23 November 2015

CaseChat Overview and Summary

The case of Coshott v Coshott involves a dispute between Mr Robert Coshott, a bankrupt, and his former wife, Mrs Ljiljana Coshott, over the entitlement of solicitors to costs from the bankrupt’s estate. The legal matter was heard in the Federal Court of Australia, where the central issue was whether the solicitors' lien on a certificate of title remained valid after the client's bankruptcy and the bankruptcy trustees' order for its delivery.

The court was tasked with determining whether the solicitors' lien, established through the possession of the certificate of title, remained effective following the client's bankruptcy declaration. This required the court to interpret the application of the Limitation Act 1969 (NSW) and assess whether the lien was extinguished by the mere passage of time or if it could persist as a passive and possessory right. The court had to decide whether the lien was defeated by the limitation period or if it remained valid and enforceable.

In its reasoning, the court held that the lien did not extinguish merely because of the passage of time. The lien was characterised as a passive and possessory right, and the certificate of title was deemed "goods" under section 68(a) of the Limitation Act 1969 (NSW). Consequently, the lien remained valid and fully effective, as it was not defeated by the mere effluxion of time. The court concluded that the lien was not otherwise extinguished and was still a viable claim. Thus, the solicitors were entitled to their costs, with interest where properly claimable.

The court's orders mandated that a specified sum be paid to the solicitors, with interest, and required the remaining amount to be returned to the Trustees for Sale. Additionally, the bankrupt and his former wife were directed to pay the solicitors' costs for the interlocutory application, and the application filed by Mrs Ljiljana Coshott was dismissed with costs.

Orders

Orders of the court

1. There be paid out to Mr Stephen Barry and Mr Martin Board the sum of $265,911.97, calculated to 3 November 2015, together with interest at the same rate up to 23 November 2015.

2. Mr Barry and Mr Board bring in short minutes of order specifying the final amount to be paid out to them within seven days of these Orders.

3. Any remaining amount is to be returned to the Trustees for Sale.

4. Mr Robert Coshott and Mrs Ljiljana Coshott pay Mr Barry’s and Mr Board’s costs of the interlocutory application filed, on behalf of Mr Barry and Mr Board, on 9 October 2015.

5. The interlocutory application filed on 6 October 2015 by Mrs Ljiljana Coshott be dismissed with costs.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:	Coshott v Coshott [2015] FCA 1284
Parties:	JAMES COSHOTT and LJILJANA COSHOTT v ROBERT GILBERT COSHOTT and MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, A FORMER BANKRUPT STEPHEN MICHAEL BARRY AND MARTIN PEARCE BOARD v LJILJANA COSHOTT, MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, A FORMER BANKRUPT and FEWIN PTY LTD ABN 64 051 132 453
File number(s):	NSD 1412 of 2009
Judge(s):	BUCHANAN J
Date of judgment:	23 November 2015
Catchwords:	COSTS – solicitors’ lien exercised by possession of certificate of title – solicitors acted for clients on purchase of property as joint tenants – solicitors acted for clients on additional legal matters – client declared bankrupt – Court ordered certificate of title be delivered to Trustees for Sale, without prejudice – client argued lien extinguished by limitation period – lien not defeated by mere effluxion of time – lien is a passive and possessory right – certificate of title “goods” under Limitation Act 1969 (NSW), s 68(a) – lien remained valid and fully effective – lien not otherwise extinguished – solicitors entitled to costs, with interest where properly claimable
Legislation:	Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW), ss 63, 68, 68(a)
Cases cited:	Beneficial Finance Corporation Ltd v Conway (No 2) [1971] VR 594 Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 Coshott v Barry [2015] NSWCA 257; (2015) 299 FLR 306 Coshott v Barry & Anor [2012] NSWSC 850 Coshott v Prentice (2014) 221 FCR 450 Kanbur Pty Ltd v Adams (1984) 3 FCR 192 The Official Trustee in Bankruptcy v Kioussis [2000] NSWSC 248 White v Bini [2003] FCA 669
Date of hearing:	10 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	30
Counsel for Applicants to Interlocutory Application:	Ms M Castle with Mr A Bailey
Solicitor for Applicants to Interlocutory Application:	CKB Associates Lawyers
Counsel for First Respondent to Interlocutory Application:	Mr A P Cheshire SC
Solicitor for First Respondent to Interlocutory Application:	Martin Place Lawyers
Counsel for Second Respondent to Interlocutory Application:	The second respondent to the interlocutory application did not appear
Counsel for Third Respondent to Interlocutory Application:	The third respondent to the interlocutory application did not appear
Counsel for First Applicant:	The first applicant did not appear
Counsel for First Respondent:	The first respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1412 of 2009

BETWEEN:	JAMES COSHOTT First Applicant LJILJANA COSHOTT Second Applicant
AND:	ROBERT GILBERT COSHOTT First Respondent MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, A FORMER BANKRUPT Second Respondent
BETWEEN:	STEPHEN MICHAEL BARRY AND MARTIN PEARCE BOARD Applicant to Interlocutory Application
AND:	LJILJANA COSHOTT First Respondent to Interlocutory Application MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT…