Coshott v Coshott (No 2)

[2019] FCA 403

FEDERAL COURT OF AUSTRALIA

Coshott v Coshott (No 2) [2019] FCA 403

File number(s):

NSD 1412 of 2009

Judge(s):

BROMWICH J

Date of judgment:

26 March 2019

Catchwords:

COSTS – costs in relation to successful interlocutory application – whether indemnity costs be ordered – held: indemnity costs ordered

Cases cited:

Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Coshott v Barry & Board [2017] NSWSC 1435

Coshott v Coshott [2017] FCA 1239

NMFM Property Pty Ltd v Citibank Ltd (No 11) [2011] FCA 480, 109 FCR 77

Date of hearing:

Determined on the papers

Date of last submissions:

3 November 2017 (Applicants on interlocutory applications)

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

9

Solicitor for the Applicants on the interlocutory applications:

Mr S Barry of CKB Associates Lawyers

Counsel for the Respondent on the interlocutory applications:

The Respondent on the interlocutory applications did not file submissions

ORDERS

NSD 1412 of 2009

IN THE INTERIM APPLICATION: 

BETWEEN:

MAXWELL WILLIAM PRENTICE

Applicant

AND:

LJILJANA COSHOTT

Respondent

IN THE FIRST INTERLOCUTORY APPLICATION:

BETWEEN:

MAXWELL WILLIAM PRENTICE

Applicant

AND:

LJILJANA COSHOTT

Respondent

IN THE SECOND INTERLOUCTORY APPLICATION:

BETWEEN:

STEPHEN BARRY & MARTIN BOARD

Applicants

AND:

LJILJANA COSHOTT

Respondent

Arising out of proceedings involving the parties listed in the Schedule

JUDGE:	BROMWICH J
DATE OF ORDER:	26 MARCH 2019

THE COURT ORDERS THAT:

1.The interlocutory respondent, Mrs Coshott, pay:

(a)the interlocutory applicant, Mr Prentice, his costs of and incidental to his interlocutory application;

(b)the interlocutory applicants, Messrs Barry and Board, the sum of $15,377.97 in respect of their joint interlocutory application; and

(c)the interlocutory applicant, Mr Barry, additionally the sum of $15,701.97 as to his individual interlocutory application.

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

REASONS FOR JUDGMENT

BROMWICH J:

1. On 20 October 2017, I delivered judgment in Coshott v Coshott [2017] FCA 1239. On the same day, I made orders for payments to be made to the interlocutory applicants out of moneys paid into Court. On the topic of costs, I said (at [32] to [33]):

   Given that the principal authority by which it is clear that the trustees for sale could validly be garnisheed by the applicants, Coshott v Learoyd, involved Mrs Coshott herself, the opposition both to payment out of Court and to the issue of a further garnishee order was clearly devoid of merit.  In those circumstances, there does not seem to be any reason why the interlocutory applicants should be out of pocket by having to litigate for what should have been routine relief.  A similar view was taken, albeit in relation to an appeal that also involved Mrs Coshott, the trustees for sale, and Mr Prentice: see Coshott v Crouch at [58]-[59].  However, Mrs Coshott has not been given an opportunity to make any submissions…