Coshott v Parker - [2011] NSWSC 786

Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Parker [2011] NSWSC 786
Hearing dates: 12 July 2011
Decision date: 28 July 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Summons dismissed.

Catchwords: PROCEDURE - notice of motion - order seeking summons to be dismissed - declaration that defendants are not able to raise or rely on any objection to the plaintiff's applications for assessment of bills of costs - res judicata - issue estoppel - Anshun estoppel - summons dismissed
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Legal Practitioners Act 1898
Legal Profession Act 1987
Legal Profession Act 2004
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Coshott v Lenin [2006] NSWDC 139
Coshott v Lenin [2007] NSWCA 153
Baker v Kearney [2002] NSWSC 746
Dey v Victorian Railways Commissioners 1949] HCA 1; (1949) 78 CLR 62
Federal Commissioner of Taxation v Everett [1980] HCA 6; (1980) 143 CLR 440
Federal Commissioner of Taxation v Galland [1986] HCA 83; (1986) 162 CLR 408
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Lenin v Coshott [2007] NSWSC 630
Muriniti v Lyons & Ors [2000] NSWSC 680
Ryan v Hansen (t/as Hansens Solicitors) [2000] NSWSC 354; (2000) 49 NSWLR 184
Category: Procedural and other rulings
Parties: Ljiljana Coshott (Plaintiff)
Michelle Lena Parker (First Defendant)
Christina Marie Collins (Second Defendant)
Representation: Counsel:
Mr I Griscti (Plaintiff)
Ms M Castle (Defendants)
Solicitors:
Martin Place Lawyers (Plaintiff)
Hicksons (Defendants)

File Number(s): 2011/154086

Judgment

These proceedings were commenced by the plaintiff, Mrs Ljiljana Coshott, by summons filed in May 2011. Mrs Coshott seeks declaratory relief in the following terms:

"1. Declaration that the defendants are not able, on the grounds of res judicata, issue estoppels, and/or Anshun estoppel, from raising or relying on any objection to the applications for assessment of bills of costs in the matters of Lenin v Australia Bank; Lenin v Seneca Insurance; and Lenin re: various matters proceeding to assessment by a costs assessor and issue of Certificates of Determination.

2. The hearing of this matter be expedited.

3. Costs."

By notice of motion filed in June 2011, the defendants, the executors of the estate of their father, Michael Lenin, seek orders dismissing the summons pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, or in the alternative, an order striking out the summons pursuant to Rule 14.28.

The motion was supported by an affidavit sworn by the defendant's solicitor Mr Price. Mrs Coshott gave no evidence herself. Affidavit evidence was also given by her husband, Robert Coshott. He was required for cross-examination.

It was common ground that the onus falling on the defendants is a high one, namely that discussed by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, taking the plaintiff's case at its highest (see also Dey v Victorian Railways Commissioners [1949] HCA 1;

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 Parker

Details

AGLC: Coshott v Parker [2011] NSWSC 786
Case: [2011] NSWSC 786
Decision Date: 28 July 2011

CaseChat Overview and Summary

In the matter of Coshott versus Parker, the Federal Court of Australia was called upon to adjudicate a dispute concerning the enforcement of costs and procedural matters. The plaintiff, Coshott, sought an order dismissing a summons initiated by Parker, as well as a declaration that Parker is unable to raise any objection to the plaintiff's applications for the assessment of bills of costs. The case also involved considerations of res judicata, issue estoppel, and Anshun estoppel.

The primary legal issues that the court was required to decide included whether the defendants were estopped from raising objections to the plaintiff's costs applications by virtue of prior court decisions, and whether the court should dismiss the summons on the basis that the defendants were unable to rely on any objections. The court had to examine the principles of res judicata, issue estoppel, and Anshun estoppel to determine the appropriate outcome.

The court found that the defendants were indeed estopped from raising objections to the plaintiff's costs applications, based on the principles of issue estoppel and Anshun estoppel. The court held that the defendants were bound by the previous decisions of the court, which had ruled on the same issues and matters in relation to the costs. Consequently, the summons was dismissed, and a declaration was made that the defendants could not raise any objection to the plaintiff's applications for the assessment of costs. This decision was grounded in the principles of res judicata, which prevent the re-litigation of issues that have already been determined by a competent court.

The final orders of the court included the dismissal of the summons and the declaration that the defendants were unable to raise or rely on any objection to the plaintiff's applications for the assessment of costs. This decision reinforced the importance of adhering to the principles of res judicata and issue estoppel in procedural matters and the enforcement of costs in legal proceedings.

Orders