Coshott v Crouch

Case [2017] FCAFC 135

FEDERAL COURT OF AUSTRALIA

Coshott v Crouch [2017] FCAFC 135

Appeal from: Coshott v Coshott [2016] FCA 966
File number: NSD 39 of 2017
Judges: ALLSOP CJ, KERR AND FARRELL JJ
Date of judgment: 18 August 2017
Catchwords: PRACTICE AND PROCEDURE – appeal against de novo review by primary judge of Registrar’s determination of remuneration of statutory trustees for sale – consideration of particular trustee recompense order in effect – scope of trustee recompense orders – whether primary judge’s methodology in error and shifted onus of proof – where appellants made submissions not made before the primary judge – appeal dismissed with costs – indemnity costs awarded
Legislation:

Federal Court of Australia Act 1976 (Cth), ss 23, 35A, 37M, 37N

Judiciary Act 1903 (Cth), s 79

Conveyancing Act 1919 (NSW), Pt 4 Div 6, s 66G
Cases cited:

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

Coshott v Coshott [2013] FCA 907

Coshott v Coshott [2016] FCA 966

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

Coulton v Holcombe [1986] HCA 33; 162 CLR 1

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

Date of hearing: 18 August 2017
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 62
Counsel for the Appellants: Mr J Hyde with Mr D Habashy
Solicitor for the Appellants: Comino Prassas Solicitors
Counsel for the First and Second Respondents: Mr S Golledge with Mr J Shandil
Solicitor for the First and Second Respondents: Matthews Folbigg Lawyers
Counsel for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs

ORDERS

NSD 39 of 2017
BETWEEN:

LJILJANA COSHOTT

First Appellant

ROBERT COSHOTT

Second Appellant
AND:

NICHOLAS CROUCH

First Respondent

SHABNAM AMIRBEAGGI

Second Respondent

MAXWELL WILLIAM PRENTICE

Third Respondent

JUDGES:

ALLSOP CJ, KERR AND FARRELL JJ

DATE OF ORDER:

18 AUGUST 2017

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs, such costs to be paid on an indemnity basis.

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


REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

  1. This matter involves an appeal by Mrs Ljiljana and Mr Robert Coshott from a primary judge’s conduct of a de novo review of a determination of a Registrar of this Court under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) which had determined the amounts to be paid to the first and second respondents, Mr Crouch and Ms Amirbeaggi, as trustees for sale appointed pursuant to orders made by a judge of the Court, Buchanan J, on 16 October 2015.

  2. The background and procedural history is as follows.  The trustees for sale had been appointed in respect of a Court ordered sale of a property in Bellevue Hill, Sydney, which was required to be sold in order to meet costs associated with the administration of the bankruptcy…

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AGLC
Coshott v Crouch [2017] FCAFC 135
Case
[2017] FCAFC 135
Decision Date

CaseChat Overview and Summary

Coshott v Crouch involved an appeal against a de novo review of the remuneration of statutory trustees for a sale, specifically focusing on the primary judge's determination of the trustee's recompense order. The matter was brought before the court by the appellants who argued that the primary judge's methodology was flawed and shifted the burden of proof. The respondents maintained the correctness of the primary judge's decision.

The legal issues centred on whether the primary judge erred in his approach to determining the scope of the trustee's recompense orders. The appellants contended that the primary judge's methodology was incorrect and that they had not been given the opportunity to address certain submissions made during the appeal, which were not previously presented to the primary judge. The respondents argued that the primary judge's decision was sound and that the appellants' arguments were without merit.

The court found that the appellants' submissions during the appeal process were not consistent with the statutory provisions and that the forensic choices made were not aligned with the statutory framework. The court also noted the overarching purpose of litigation and the disadvantage to the co-owners, which warranted the awarding of indemnity costs. Consequently, the appeal was dismissed with costs to be paid on an indemnity basis, in line with the statutory provisions of the Federal Court of Australia Act.

The final order of the court was that the appeal be dismissed with costs, such costs to be paid on an indemnity basis, reflecting the court's determination that the primary judge's decision was correct and that the appellants' arguments did not warrant a different outcome.

Orders

Orders of the court

1. The appeal be dismissed with costs, such costs to be paid on an indemnity basis.

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

In those circumstances, and considering the submissions of Mr Golledge as to the disadvantage to the co-owners and considering the matters in ss 37M and N of the Federal Court of Australia Act and the overarching purpose of litigation that now should be understood, after so many years, by not only counsel and solicitors but litigants also, this, in my view, is a plain case for the awarding of indemnity costs, and I would so order.REASONS FOR JUDGMENT(Revised from the transcript)KERR J: I concur with the reasons of the Chief Justice and only add that the forensic choices that were undertaken in the course of these proceedings are not those which are consistent with the statutory provisions that his Honour has referred to. I concur with the Chief Justice’s reasons. The orders of the court are appeal dismissed with costs, such costs to be paid on an indemnity basis.

Ratio Decidendi

Legal Principle Established

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