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:
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.
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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- Coshott v Crouch [2017] FCAFC 135
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- [2017] FCAFC 135
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CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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