Coshott v Coshott [2014] FCA 1418

Coshott v Coshott [2014] FCA 1418

Fewin Pty Limited lacked standing due to insufficient evidence of possession or notice and only held an equitable interest in part of the property. Even if the legal argument regarding the direction of the writ were correct, the balance of convenience favoured allowing execution to proceed as Fewin will not be prejudiced by the sale, and no relevant benefit is denied.

Parties
First Applicant: James Coshott; Second Applicant: Ljiljana Coshott; Cross Claimant: Maxwell William Prentice in his capacity as Trustee of the Property of Robert Gilbert Coshott, a Bankrupt; First Respondent: Robert Gilbert Coshott, a Bankrupt; Second Respondent: Maxwell William Prentice in his capacity as Trustee of the Property of Robert Gilbert Coshott, a Bankrupt; First Cross Respondent: James Coshott; Second Cross Respondent: Ljiljana Coshott; Third Cross Respondent: Robert Gilbert Coshott, a Bankrupt; Fourth Cross Respondent: Schlotzsky's Nominee Company Pty Limited
Jurisdiction
Australia
Judgment Date
18 December 2014
Procedural Posture
Interlocutory Application / Dismissal of Application for Stay of Execution of Writ of Possession
Outcome
Interlocutory application for stay dismissed
Legal Topics
Stay of Execution, Powers of Court Sheriff and Deputy Sheriff, Notice Under Conveyancing Act 1919 (nsw) S 111, Mortgagee in Possession
Conveyancing Bankruptcy Stay of Execution Powers of Court Sheriff and Deputy Sheriff Notice Under Conveyancing Act 1919 (nsw) S 111 Mortgagee in Possession

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Parties

James Coshott

First Applicant

Ljiljana Coshott

Second Applicant

Maxwell William Prentice in his capacity as Trustee of the Property of Robert Gilbert Coshott, a Bankrupt

Cross Claimant

Robert Gilbert Coshott, a Bankrupt

First Respondent

Maxwell William Prentice in his capacity as Trustee of the Property of Robert Gilbert Coshott, a Bankrupt

Second Respondent

James Coshott

First Cross Respondent

Ljiljana Coshott

Second Cross Respondent

Robert Gilbert Coshott, a Bankrupt

Third Cross Respondent

Schlotzsky's Nominee Company Pty Limited

Fourth Cross Respondent

Procedural Posture

Interlocutory Application / Dismissal of Application for Stay of Execution of Writ of Possession

Legal Issues

  1. 1 Validity of the Writ of Possession with respect to its direction to Sheriff and Sheriff's officers
  2. 2 Standing of Fewin Pty Limited to bring the application
  3. 3 Compliance with notice requirements under Conveyancing Act 1919 (NSW) s 111

Ratio Decidendi

Fewin Pty Limited lacked standing due to insufficient evidence of possession or notice and only held an equitable interest in part of the property. Even if the legal argument regarding the direction of the writ were correct, the balance of convenience favoured allowing execution to proceed as Fewin will not be prejudiced by the sale, and no relevant benefit is denied.

Court Disposition

Interlocutory application for stay dismissed

Orders

  • The interlocutory application be dismissed.