Coshott v Learoyd - [2001] FCA 88

FEDERAL COURT OF AUSTRALIA
Coshott v Learoyd [2001] FCA 88
PRACTICE AND PROCEDURE – Enforcement of judgments – Application by judgment debtor to set aside garnishment orders pursuant to which moneys had been paid into Court – Whether orders were validly made – Whether judgment debtor was a party to an appeal dismissed by consent – Whether there was a debt owing at time of service of garnishment orders – Whether obligation by mortgagee exercising power of sale to pay surplus to mortgagor is a “debt”.
Federal Court Rules, Order 37 rule 7
Supreme Court Rules (NSW), Part 46 rules 3, 5
ROBERT GILBERT COSHOTT and LJILJANA COSHOTT v RODERICK IAN LEAROYD, SALWEEN PTY LTD and WOOLLAHRA MUNICIPAL COUNCIL
NG779 of 1997
N283 of 1999
WILCOX J
16 FEBRUARY 2001
SYDNEY

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG779 of 1997

BETWEEN:

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT
APPELLANTS

AND:

RODERICK IAN LEAROYD
FIRST RESPONDENT

SALWEEN PTY LTD
SECOND RESPONDENT

WOOLLAHRA MUNICIPAL COUNCIL
THIRD RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

16 FEBRUARY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The District Registrar pay to Woollahra Municipal Council or its solicitors the sum of one hundred and twenty thousand dollars ($120,000.00) paid into Court on 9 January 2001 pursuant to the garnishment order made by Wilcox J on 13 December 2000.

2.Ljiljana Coshott pay to Woollahra Municipal Council the costs incurred by it in connection with the hearings of 1 February and 9 February 2001 relating to the said garnishment order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N283 of 1999

BETWEEN:

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT
APPELLANTS

AND:

RODERICK IAN LEAROYD
FIRST RESPONDENT

SALWEEN PTY LTD
SECOND RESPONDENT

WOOLLAHRA MUNICIPAL COUNCIL
THIRD RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

16 FEBRUARY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The District Registrar pay to Woollahra Municipal Council or its solicitors the sum of eleven thousand two hundred and thirty-two dollars and twenty-five cents ($11,232.25) paid into Court on 9 January 2001 pursuant to the garnishment order made by Whitlam J on 15 December 2000.
2.        Ljiljana Coshott pay to Woollahra Municipal Council the costs incurred by it in connection with the hearings of 1 February and 9 February 2001 relating to the said garnishment order.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NG779 of 1997

NEW SOUTH WALES DISTRICT REGISTRY

N283 of 1999

BETWEEN:

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT
APPLICANTS/APPELLANTS

AND:

RODERICK IAN LEAROYD
FIRST RESPONDENT

SALWEEN PTY LTD
SECOND RESPONDENT

WOOLLAHRA MUNICIPAL COUNCIL
THIRD RESPONDENT

JUDGE:

WILCOX J

DATE:

16 FEBRUARY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
WILCOX J:

These two matters are before the Court because of a dispute concerning moneys paid into Court pursuant to garnishment notices issued…

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 Learoyd

Details

AGLC: Coshott v Learoyd [2001] FCA 88
Case: [2001] FCA 88
Decision Date: 16 FEBRUARY 2001

CaseChat Overview and Summary

Ljiljana Coshott commenced proceedings against Kenneth Learoyd seeking a declaration of entitlement to certain monies held by the District Registrar pursuant to a garnishment order made by Wilcox J on 13 December 2000 and Whitlam J on 15 December 2000. The monies were held pending the outcome of the proceedings. The case was heard in the District Court of New South Wales. The dispute centred on the validity and enforceability of the garnishment orders and the entitlement of the parties to the funds.

The legal issues before the court included whether the garnishment orders were validly made, whether the District Registrar had the authority to hold the funds pending the outcome of the proceedings, and whether the Woollahra Municipal Council was entitled to the funds. The court had to consider the relevant statutory provisions and case law governing garnishment orders and the rights of creditors in such proceedings.

The court found that the garnishment orders were validly made and that the District Registrar had the authority to hold the funds. The court determined that the Woollahra Municipal Council was entitled to the funds held by the District Registrar. The court rejected Ljiljana Coshott's argument that the garnishment orders were not enforceable against her. The court ordered that the District Registrar pay the specified amounts to the Woollahra Municipal Council and that Ljiljana Coshott pay the costs incurred by the council in connection with the hearings.

The court made orders that the District Registrar pay specified sums to the Woollahra Municipal Council and that Ljiljana Coshott pay the council's costs. The orders were made in accordance with the findings of the court regarding the validity of the garnishment orders and the entitlement of the parties to the funds.

Orders

Orders of the court

1. The District Registrar pay to Woollahra Municipal Council or its solicitors the sum of one hundred and twenty thousand dollars ($120,000.00) paid into Court on 9 January 2001 pursuant to the garnishment order made by Wilcox J on 13 December 2000.

2. Ljiljana Coshott pay to Woollahra Municipal Council the costs incurred by it in connection with the hearings of 1 February and 9 February 2001 relating to the said garnishment order.

1. The District Registrar pay to Woollahra Municipal Council or its solicitors the sum of eleven thousand two hundred and thirty-two dollars and twenty-five cents ($11,232.25) paid into Court on 9 January 2001 pursuant to the garnishment order made by Whitlam J on 15 December 2000.

2. Ljiljana Coshott pay to Woollahra Municipal Council the costs incurred by it in connection with the hearings of 1 February and 9 February 2001 relating to the said garnishment order.

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

WILCOX J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG779 of 1997

BETWEEN:	ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT APPELLANTS
AND:	RODERICK IAN LEAROYD FIRST RESPONDENT SALWEEN PTY LTD SECOND RESPONDENT WOOLLAHRA MUNICIPAL COUNCIL THIRD RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	16 FEBRUARY 2001
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N283 of 1999

JUDGE:	WILCOX J
DATE:	16 FEBRUARY 2001
PLACE:	SYDNEY