Coshott v Prentice

[2015] FCA 1224

FEDERAL COURT OF AUSTRALIA

Coshott v Prentice [2015] FCA 1224

Citation:

Coshott v Prentice [2015] FCA 1224

Appeal from:

Coshott & Anor v Prentice [2015] FCCA 241

Parties:

RONALD MICHAEL COSHOTT and FEWIN PTY LIMITED v MAXWELL WILLIAM PRENTICE

File number:

NSD 786 of 2015

Judge:

JAGOT J

Date of judgment:

2 November 2015

Catchwords:

PRACTICE AND PROCEDURE – whether primary judge made finding that was not open on the evidence – primary judge erred – leave granted to adduce fresh evidence on appeal

BANKRUPTCY AND INSOLVENCY – whether assignment of debt constituted a sham transaction – insufficient evidence to establish a sham – primary judge erred

Legislation:

Bankruptcy Act 1966 (Cth) ss 34A(1), 64ZB(8)

Cases cited:

Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Coshott v Prentice [2015] FCCA 241
Zaccardi v Caunt [2008] NSWCA 202

Date of hearing:

2 November 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

29

Counsel for the Appellants:

Mr A Cheshire SC

Solicitor for the Appellants:

Martin Place Lawyers

Counsel for the Respondent:

Mr JT Johnson

Solicitor for the Respondent:

O’Neill Partners Commercial Lawyers incorporating Sally Nash & Co

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 786 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

RONALD MICHAEL COSHOTT
First Appellant

FEWIN PTY LIMITED
Second Appellant

AND:

MAXWELL WILLIAM PRENTICE
Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	2 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The parties confer in light of the oral reasons for judgment delivered by Jagot J on 2 November 2015 and within 7 days submit agreed orders in accordance with those reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 786 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

RONALD MICHAEL COSHOTT
First Appellant

FEWIN PTY LIMITED
Second Appellant

AND:

MAXWELL WILLIAM PRENTICE
Respondent

JUDGE:	JAGOT J
DATE:	2 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of the Federal Circuit Court of Australia in Coshott v Prentice [2015] FCCA 241 under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). There are two primary issues on the appeal and a subsidiary issue relating to costs, which is dependent upon the resolution of the two primary issues.  The respondent has also filed in court today a notice of contention to which no objection is taken, the relevant issue raised in the notice of contention being, effectively, alive on the appeal in any event. 

2. The first issue that needs to be resolved relates to the primary judge’s conclusion in respect of a debt said to be owed by the bankrupt to the entity B&W Windows Pty Ltd.  In his reasons for judgment, the primary judge said this:

   [53] The position in relation to the debts…