Coshott v Shipton Lodge Cobbitty Pty Ltd

FEDERAL COURT OF AUSTRALIA

Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FCAFC 159

ROBERT GILBERT COSHOTT v SHIPTON LODGE COBBITTY PTY LTD
NSD 318 OF 2008

SYDNEY
5 AUGUST 2008
MOORE, MARSHALL AND BUCHANAN JJ

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 318 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROBERT GILBERT COSHOTT Appellant
AND:	SHIPTON LODGE COBBITTY PTY LTD Respondent

JUDGES:	MOORE, MARSHALL AND BUCHANAN JJ
DATE OF ORDER:	5 AUGUST 20008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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	NSD 318 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROBERT GILBERT COSHOTT Appellant
AND:	SHIPTON LODGE COBBITTY PTY LTD Respondent

JUDGES:	MOORE, MARSHALL AND BUCHANAN JJ
DATE:	5 AUGUST 20008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 15 February 2008 dismissing an application to set aside a bankruptcy notice: Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FMCA 202. The bankruptcy notice was based on a judgment against the appellant of 25 May 2004 in the Local Court of New South Wales ordering the appellant to pay the respondent costs in the sum of $35,862.92. The costs order was made after a Local Magistrate had dismissed a cross claim by the appellant in the sum of $21,535.57.

2. Before the Federal Magistrate, the appellant challenged the bankruptcy notice on the basis that the Local Magistrate had no power to order costs in this sum having regard to the combined operation of the Local Courts (Civil Claims) Act 1970 (NSW) and the rules made under that Act. Central to the appellant's case that the Local Magistrate had no power to make the order was a contention that the Magistrate had been sitting in the Small Claims Division of the Local Court. The Federal Magistrate concluded (at [31] and [32]) of his reasons, that the Local Magistrate had not been sitting in the Small Claims Division.

3. In this appeal, it is necessary for the appellant to demonstrate that this finding is wrong as the first step in demonstrating that the Local Magistrate had no power to make the order.  The only evidence the appellant relied upon both before the Federal Magistrate and in this appeal to establish that the Local Magistrate was sitting in the Small Claims Division was a certificate issued by the Local Court on 19 July 2007.  That certificate records, under a heading "COURT DETAILS" that the division was the "SMALL CLAIMS DIVISION".  It is true that an inference might be drawn from the certificate that the orders had been made in the Small Claims Division.  However, the fact that the certificate records that a costs order was made would sustain an inference to the opposite effect, namely…