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Coshott v Prentice

Coshott v Prentice

Case [2013] FCA 1036 4 October 2013

Bankruptcy Act 1966 (Cth)

Trustee in Bankruptcy

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FEDERAL COURT OF AUSTRALIA
Coshott v Prentice [2013] FCA 1036

Citation: Coshott v Prentice [2013] FCA 1036

Parties: LJILJANA COSHOTT and SCHLOTZKY'S NOMINEE COMPANY PTY LIMITED v MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT, ROBERT GILBERT COSHOTT and JAMES COSHOTT

File number: NSD 2016 of 2013

Judge: GRIFFITHS J

Date of judgment: 4 October 2013

Catchwords: PRACTICE AND PROCEDURE – application for a stay pending hearing of appeal – application of relevant principles – whether notice of appeal discloses a reasonably arguable point

Legislation:
Bankruptcy Act 1966 (Cth) s 30
Conveyancing Act 1919 (NSW) s 66G
Federal Court of Australia Act 1976 (Cth) s 29
Superannuation Industry (Supervision) Act 1993 (Cth)

Federal Court Rules 2011 r 36

Cases cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Briginshaw v Briginshaw (1938) 60 CLR 336
Dubow v Fitness First (Australia) Pty Ltd [2010] FCA 660
George v Fletcher
Lewis v Condon [2013] NSWCA 204
Ozden v Ozden [2013] VSCA 195
Park v Barclay (2010) 239 FLR 396
Raftland v Federal Commissioner of Taxation (2008) 238 CLR 516
Sharrment Pty Limited v The Official Trustee in Bankruptcy (1988) 18 FCR 449
Starr-Diamond v Diamond (No. 3) [2013] NSWSC 351

Date of hearing: 4 October 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 50

Counsel for the Appellants: Mr N Kidd SC and Mr D Hughes

Solicitor for the Appellants: Spencer & Co Legal

Counsel for the First Respondent: Mr J Johnson

Solicitor for the First Respondent: Sally Nash & Co

Counsel for the Second and Third Respondents: The second and third respondents filed submitting notices

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2016 of 2013

BETWEEN:
LJILJANA COSHOTT
First Appellant

SCHLOTZKY'S NOMINEE COMPANY PTY LIMITED
Second Appellant

AND:
MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT
First Respondent

ROBERT GILBERT COSHOTT
Second Respondent

JAMES COSHOTT
Third Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

4 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appellants’ interlocutory application filed 27 September 2013 is dismissed.
2.The appeal be expedited for hearing.
3.The appellants pay the first respondent’s costs of the interlocutory application.

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 2016 of 2013

BETWEEN:
LJILJANA COSHOTT
First Appellant

SCHLOTZKY'S NOMINEE COMPANY PTY LIMITED
Second Appellant

AND:
MAXWELL WILLIAM PRENTICE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF ROBERT GILBERT COSHOTT
First Respondent

ROBERT GILBERT COSHOTT
Second Respondent

JAMES COSHOTT
Third Respondent

JUDGE:

GRIFFITHS J

DATE:

4 OCTOBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The court is asked to determine an application for a stay of orders made on 10 September 2013 by the primary judge. On 27 September 2013 the appellants filed a notice of appeal from his Honour’s orders. An amended notice of…

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 Prentice

Details

AGLC: Coshott v Prentice [2013] FCA 1036
Case: [2013] FCA 1036
Decision Date

CaseChat Overview and Summary

In the case of Coshott v Prentice, the Federal Court of Australia was asked to determine an application for a stay of orders made by the primary judge on 10 September 2013. The appellants, LJILJANA COSHOTT and SCHLOTZKY'S NOMINEE COMPANY PTY LIMITED, filed a notice of appeal against the primary judge's orders on 27 September 2013, which was later amended. The primary judge's orders, among other things, declared that the property at 1 Bunyula Road, Bellevue Hill, was acquired by the second cross-respondent and the third cross-respondent beneficially as joint tenants and ordered that the property be sold by the cross-claimant as trustee for sale. The appellants raised four grounds of appeal, including errors in the primary judge's findings and orders. The court considered the relevant principles applicable to the court's consideration of an application for a stay pending an appeal and found that none of the four broad grounds of appeal raised in the amended notice of appeal were reasonably arguable. The court also considered the balance of convenience and dismissed the application for a stay. The appeal was ordered to be expedited, and the appellants were ordered to pay the costs of the first respondent.

Orders