Coshott v Coshott (No 2)

Case [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…

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AGLC
Coshott v Coshott (No 2) [2019] FCA 403
Case
[2019] FCA 403
Decision Date

CaseChat Overview and Summary

The case of Coshott v Coshott (No 2) involved the parties, Mr Prentice, Messrs Barry and Board, and Mrs Coshott, in a dispute primarily concerning costs associated with successful interlocutory applications. The matter was adjudicated in the Federal Court of Australia. The central issue before the court was whether indemnity costs should be awarded to the successful applicants in relation to their interlocutory applications.

The legal question at hand was whether the successful applicants, Mr Prentice, Messrs Barry and Board, were entitled to indemnity costs for their successful interlocutory applications. The court needed to assess whether the circumstances of the case warranted such an order, considering the principles governing costs in interlocutory applications. The applicants argued that the nature of their applications and the opposition they faced justified the award of indemnity costs, while the respondent contended that the usual order for costs should suffice.

The court found that the successful applicants had demonstrated exceptional circumstances that warranted the award of indemnity costs. The judge considered the complexity of the applications, the significant resources expended by the applicants, and the opposition's conduct, which included delaying tactics and a lack of cooperation. Consequently, the court ordered that the interlocutory respondent, Mrs Coshott, pay the costs of the successful applicants, including indemnity costs for Mr Barry. This decision was made in accordance with the relevant rules and principles governing costs in interlocutory applications.

The final orders of the court required Mrs Coshott to pay the costs of Mr Prentice, the joint costs of Messrs Barry and Board, and an additional amount to Mr Barry as per the detailed breakdown provided in the orders. These orders were entered in compliance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

Background

Background to the litigation

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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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