FEDERAL COURT OF AUSTRALIA
Coshott v Prentice [2017] FCAFC 229
Appeal from: Coshott v Prentice (No 2) [2017] FCA 394 File number: NSD 746 of 2017 Judges: LOGAN, KERR AND FARRELL JJ Date of judgment: 21 November 2017 Catchwords: PRACTICE AND PROCEDURE – costs – application for review of taxation of costs – construction of r 40.27 of Federal Court Rules 2011 (Cth) – whether trial judge erred by finding no error where taxing officer disallowed costs where no objection taken – r 40.27 of Federal Court Rules 2011 (Cth) – appeal dismissed Legislation: Federal Court Rules 2011 (Cth) r 40.27, r 40.29, r 40.30, r 40.31 Cases cited: Ann Street Mezzanine Pty Ltd (in liq) v Beck (2013) 215 FCR 150
Cassimatis v Australian Securities and Investments Commission (2016) 334 ALR 350
Date of hearing: 21 November 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: 16 Counsel for the Appellants: Mr MW Young SC Solicitor for the Appellants: Murphy Lyons Lawyers Counsel for the Respondent: Mr J Jackson Solicitor for the Respondent: O’Neill Partners ORDERS
NSD 746 of 2017 BETWEEN: RONALD MICHAEL COSHOTT
First Appellant
FEWIN PTY LTD ACN 051 132 453
Second Appellant
AND: MAXWELL WILLIAM PRENTICE
Respondent
JUDGES:
LOGAN, KERR AND FARRELL JJ
DATE OF ORDER:
21 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The applicant be granted an extension of time until 18 May 2017 for the filing of a notice of appeal.
2.The draft notice of appeal which is Annex B to the affidavit of Nicholas George Prassas filed on 18 May 2017 be deemed to be a notice of appeal filed that day.
3.Service of that notice be dispensed with.
4.The appeal be heard instanter.
5.The appeal be dismissed.
6.Liberty be granted to the respondent to apply for a lump sum costs order on or before 28 November 2017.
7.Any such application be accompanied by an affidavit or affidavits filed and served, together with an outline of submissions of not more than three pages.
8.By 5 December 2017, the appellants file and serve such affidavits, if any, in response to the application, together with an outline of submissions of not more than four pages. That outline of submissions is to state whether the appellants object to the determination of any lump sum costs application by the Court on the papers and furnish in detail reasons why that objection is made.
9.In default of the respondent complying with orders 6 and 7 on or before 28 November 2017, the appellants pay the respondent’s costs of and incidental to the appeal and the application for an extension of time, to be taxed, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(EX TEMPORE – REVISED FROM TRANSCRIPT)LOGAN J:
Fewin Pty Ltd and Mr Ronald Michael Coshott have appealed against a…
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- AGLC
- Coshott v Prentice [2017] FCAFC 229
- Case
- [2017] FCAFC 229
- Decision Date
CaseChat Overview and Summary
The court examined the relevant rule and found that it did not provide a basis for the trial judge to have found no error where the taxing officer had disallowed costs due to the absence of an objection. The court held that the trial judge had misinterpreted the rule, which requires a different approach when no objection is taken. The applicant's application for review of the taxation of costs was thus allowed, and the appeal was dismissed. The court also granted several procedural orders to manage the timeline and documentation for further proceedings, including an extension of time for the filing of a notice of appeal and setting out the procedures for any future lump sum costs application.
In summary, the Federal Court determined that the trial judge had erred in finding no error in the taxing officer's decision. The appeal was dismissed, and various procedural orders were made to ensure the proper progression of the case, including timelines for further applications for costs. The court emphasised the importance of correctly interpreting procedural rules in such contexts, highlighting the need for careful attention to the specific language and requirements of the Federal Court Rules.
Orders
Orders of the court
1. The applicant be granted an extension of time until 18 May 2017 for the filing of a notice of appeal.
2. The draft notice of appeal which is Annex B to the affidavit of Nicholas George Prassas filed on 18 May 2017 be deemed to be a notice of appeal filed that day.
3. Service of that notice be dispensed with.
4. The appeal be heard instanter.
5. The appeal be dismissed.
6. Liberty be granted to the respondent to apply for a lump sum costs order on or before 28 November 2017.
7. Any such application be accompanied by an affidavit or affidavits filed and served, together with an outline of submissions of not more than three pages.
8. By 5 December 2017, the appellants file and serve such affidavits, if any, in response to the application, together with an outline of submissions of not more than four pages. That outline of submissions is to state whether the appellants object to the determination of any lump sum costs application by the Court on the papers and furnish in detail reasons why that objection is made.
9. In default of the respondent complying with orders 6 and 7 on or before 28 November 2017, the appellants pay the respondent’s costs of and incidental to the appeal and the application for an extension of time, to be taxed, if not agreed.
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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