Coshott v Shipton Lodge Cobbitty Pty Ltd

[2008] FCAFC 159

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 that the orders were not made in the Small Claims Division.  This was the inference drawn by the Federal Magistrate having regard to the amount of the claim the Local Magistrate was being asked to determine in the proceedings (a cross claim by the appellant) which led to the costs order.

4. It does not appear to us that the Federal Magistrate erred in drawing the inference he did. It is an inference that can be drawn from the certificate the appellant relied upon as well as the evidence concerning the amount of the claim before the Local Magistrate. The amount claimed exceeded $10,000 and, by operation of s 12 of the Local Courts (Civil Claims) Act 1970 (NSW), was within the jurisdiction of the General Division but not the Small Claims Division of the Local Court.

5. Accordingly the appellant has not demonstrated that the conclusion ultimately reached by the Federal Magistrate was wrong.  The appeal should be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Marshall and Buchanan.

Associate:

Dated:        5 August 20008

The Appellant appeared in person
Counsel for the Respondent:	Mr M Bradford
Solicitor for the Respondent:	Slater & Gordon Lawyers
Date of Hearing:	5 August 2008
Date of Judgment:	5 August 2008