Shipton Lodge Cobbitty Pty Ltd v Coshott - [2008] FMCA 1294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHIPTON LODGE COBBITTY PTY LTD v COSHOTT

[2008] FMCA 1294

BANKRUPTCY – Creditor’s petition – adjournment to allow debtor to raise money from assets.

Bankruptcy Act 1966 (Cth), s.52(2)(a)

Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FCAFC 159
Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FMCA 202
Australia & New Zealand Banking Group Pty Ltd v Foyster [2000] FCA 400

Applicant:

SHIPTON LODGE COBBITTY PTY LTD

ACN 071 860 092

Respondent:

ROBERT GILBERT COSHOTT

File Number:

SYG 590 of 2008

Judgment of:

Smith FM

Hearing date:

2 September 2008

Delivered at:

Sydney

Delivered on:

2 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr S Lewis

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Respondent in person

ORDERS

The petition is adjourned for hearing on 7 November 2008 at 10.15am, on the condition that the respondent debtor shall provide security for payment of the applicant’s costs in this proceeding, in proceeding SYG3992 of 2007, and in Federal Court proceeding NSD 318 of 2008, in such form as may be agreed between the parties or, failing agreement, in a form acceptable to the District Registrar of the Court, in the following amounts:
(i)$20,000 on or before 4pm on 16 September 2008.
(ii)$5,000 on or before 4pm on 23 September 2008.
Liberty to either party to have the matter listed for directions on a date allowing 3 days notice to the other party.
The respondent debtor must file and serve any further evidence in support of his opposition to the petition no later than 4pm on 31 October 2008. No other evidence shall be admitted without the leave of the Court.
The respondent debtor must pay the applicant’s costs incurred by reason of the adjournment as agreed or taxed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 590 of 2008

SHIPTON LODGE COBBITTY PTY LTD

ACN 071 860 092

Applicant

And

ROBERT GILBERT COSHOTT

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a petition for a sequestration order to be made against Mr Coshott. The petition relies upon the same debt and bankruptcy notice which I upheld in Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FMCA 202. My orders in that matter were taken on appeal by Mr Coshott, but the appeal was dismissed at the end of an oral hearing on 5 August 2008 by Moore, Marshall and Buchanan JJ (Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FCAFC 159).
The petition had been filed before the hearing of the appeal and adjourned, but was listed today for hearing.
Mr Coshott now admits that the creditor has established all the matters required to be established before the making of a sequestration order, but he relies upon one ground of opposition under s.52(2)(a) of the Bankruptcy Act 1966 (Cth). That is, that he “is able to pay his debts”.
He has filed an affidavit…

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: [2008] FMCA 1294
Decision Date: 2 September 2008

CaseChat Overview and Summary

The case of Shipton Lodge Cobbitty Pty Ltd v Coshott involves a dispute between a company, Shipton Lodge Cobbitty Pty Ltd, and an individual, Coshott. The company, acting as the applicant, has filed a petition which the individual, the respondent debtor, has opposed. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was the determination of costs associated with the adjournment of the hearing and the provision of security by the respondent debtor to cover these costs. The court was also required to decide on the timeline for the respondent to file further evidence in support of his opposition and the conditions under which additional evidence could be presented.

The court deliberated on the appropriate amounts for the security to be provided and the necessity for these payments to be made in stages. It was noted that any security provided must be in a form agreeable to both parties or, in the absence of agreement, in a form acceptable to the District Registrar of the Court. The court considered the urgency and the potential financial burden on the respondent debtor, setting out a detailed schedule for the payment of the security. It was determined that the respondent debtor must also adhere to a strict timeline for filing and serving any further evidence in support of his opposition, with a final cutoff date set for 31 October 2008. Any evidence submitted after this date would require the leave of the Court.

The court granted liberty for either party to have the matter listed for directions, ensuring that both parties had sufficient notice of any such listing. The court ordered that the petition be adjourned for hearing on 7 November 2008, with the condition that the respondent debtor provide security for the costs as outlined. The court also mandated that no further evidence be admitted without its leave, ensuring that the proceedings remained focused and efficient. The final orders reflect the court's decision on the costs, security, and evidence, providing a clear path forward for the case.

Orders

Orders of the court

The petition is adjourned for hearing on 7 November 2008 at 10.15am, on the condition that the respondent debtor shall provide security for payment of the applicant’s costs in this proceeding, in proceeding SYG3992 of 2007, and in Federal Court proceeding NSD 318 of 2008, in such form as may be agreed between the parties or, failing agreement, in a form acceptable to the District Registrar of the Court, in the following amounts:

(i) $20,000 on or before 4pm on 16 September 2008.

(ii) $5,000 on or before 4pm on 23 September 2008.

Liberty to either party to have the matter listed for directions on a date allowing 3 days notice to the other party.

The respondent debtor must file and serve any further evidence in support of his opposition to the petition no later than 4pm on 31 October 2008. No other evidence shall be admitted without the leave of the Court.

The respondent debtor must pay the applicant’s costs incurred by reason of the adjournment as agreed or taxed pursuant to the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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