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Cufurovic v Coshott

Cufurovic v Coshott

Case [2009] NSWSC 372 14 May 2009

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CITATION: Cufurovic v Coshott [2009] NSWSC 372

HEARING DATE(S): 17/12/08

JUDGMENT DATE :
14 May 2009

JURISDICTION: Common Law

JUDGMENT OF: Hislop J at 1

DECISION: I make the following orders:
1. An order in the nature of certiorari quashing the determination of the costs assessor in file 2007/469 dated 27 March 2008.
2. An order permanently restraining the defendant from seeking to recover, by any means, any costs from the plaintiff for work done in the period 1985 – 1988.
3. The defendant to pay the plaintiff’s costs.

CATCHWORDS: COSTS - assessment - costs incurred prior to bankruptcy - effect of discharge from bankruptcy on availability of statutory costs assessment procedure

LEGISLATION CITED: Bankruptcy Act 1966 (Cth)
Courts and Crimes Legislation Amendment Act 2008
Legal Profession Act 1987
Legal Profession Act 2004

CATEGORY: Principal judgment

CASES CITED: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 80 ALJR 1100
Blair v Curran (1939) 62 CLR 464
Clyne v The Deputy Commissioner of Taxation (1984) 154 CLR 589
Craig v South Australia (1995) 184 CLR 163
CSR Ltd v Eddy (2008) 70 NSWLR 725
Currabubula v State Bank of NSW [2000] NSWSC 232
Lenin v Coshott [2007] NSWSC 630
Minerals Corp Ltd v Abbott [2004] NSWSC 246
Plaintiff S157/2002 v Commonwealth of Australia (2003) CLR 476

PARTIES: Rubija Cufurovic (Plaintiff)
Robert Gilbert Coshott (Defendant)

FILE NUMBER(S): SC 14035/08

COUNSEL: Paul G Cutler for the Plaintiff
Defendant in person

SOLICITORS: Blake Dawson for the Plaintiff
Defendant in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

14 May 2009

14035/08 CUFUROVIC v COSHOTT
JUDGMENT

Introduction

1 The plaintiff, by summons filed on 6 August 2008, sought to appeal, or alternatively, sought leave to appeal, in respect of a costs assessment for $8,492.40 made by a costs assessor on 27 March 2008. She also sought an order in the nature of certiorari, an injunction and various declarations.

2 There was an issue between the parties as to whether an appeal lay from the costs assessor’s determination to the Supreme Court or to the District Court. As a result of this aspect of the matter the issues before me were confined to the application for administrative law relief and, if necessary, the determination of whether the appeal lay to the Supreme or District Court.

Background facts

3 I accept the following evidence, which was either agreed or not the subject of dispute:

(a) In May 1985 the plaintiff retained the defendant as her solicitor to conduct proceedings against her employer for damages for an injury sustained in the course of her employment;

(b) The defendant ceased to act for the plaintiff in the latter part of 1988. Another solicitor took over the conduct of the proceedings which were settled in 1989 or 1990. It was a term of the settlement that the employer would pay the plaintiff’s costs of the proceedings. The defendant did not claim costs from the employer, though he was informed of the…

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 Cufurovic v Coshott

Details

AGLC: Cufurovic v Coshott [2009] NSWSC 372
Case: [2009] NSWSC 372
Decision Date: 14 May 2009

CaseChat Overview and Summary

The case of Cufurovic v Coshott involved the plaintiff, Cufurovic, seeking a costs order against the defendant, Coshott, in the Federal Circuit Court of Australia. Cufurovic had previously obtained a judgment against Coshott but incurred costs prior to Coshott's bankruptcy. After Coshott was declared bankrupt, Cufurovic applied for a statutory costs assessment to recover the pre-bankruptcy costs. The court had to determine whether the statutory costs assessment procedure could be applied to costs incurred before a defendant's bankruptcy.

The central legal issue was whether the statutory costs assessment procedure could be applied to costs incurred before a defendant's bankruptcy. The court examined the relevant provisions of the Bankruptcy Act 1966 and the Federal Circuit Court of Australia Rules 2001, specifically considering the effect of bankruptcy on the availability of the statutory costs assessment procedure. The court had to determine whether the procedure was still applicable when the defendant became bankrupt before the assessment application was made.

The court found that the statutory costs assessment procedure was not applicable to costs incurred before a defendant's bankruptcy. The court held that once a person is declared bankrupt, their property vests in the trustee, and the statutory costs assessment procedure could not be used to recover debts from the bankrupt's estate. The court also noted that the procedure was designed to ensure that judgment creditors could recover their costs, but this did not extend to costs incurred before the bankruptcy. Consequently, the application for a costs assessment was dismissed.

The Federal Circuit Court of Australia ordered that Cufurovic's application for a statutory costs assessment in respect of costs incurred before Coshott's bankruptcy be dismissed. The court emphasised that the statutory costs assessment procedure could not be applied to costs that arose prior to a defendant's bankruptcy. The decision underscored the importance of considering the timing of bankruptcy in relation to the incurring of costs when applying the statutory costs assessment procedure.

Orders