Coshott v Prentice [2013] FCA 1036

Coshott v Prentice [2013] FCA 1036

The stay was refused because none of the four broad grounds in the amended notice of appeal was reasonably arguable. The asserted evidence did not support the contention that Super Fund monies were used to acquire Mr Coshott's beneficial interest; the primary judge's findings of sham were supported by surrounding circumstances and, in context, involved deceptive conduct and sufficient appreciation of their seriousness; the abuse of process challenge was undermined by an express concession on standing and by other reasons for the finding; the absence-of-power challenge failed because s 66G of the Conveyancing Act 1919 (NSW) was accepted as an available source of power and no pleaded ground...

Jurisdiction
Australia
Judgment Date
04 October 2013
Procedural Posture
Application for a Stay Pending Hearing of Appeal / Interlocutory Application Filed 27 September 2013 After Notice of Appeal From Orders Made on 10 September 2013
Outcome
The appellants' interlocutory application for a stay pending appeal was dismissed; the appeal was expedited; the appellants were ordered to pay the first respondent's costs of the interlocutory application.
Legal Topics
['stay Pending Appeal' 'arguable Grounds of Appeal' 'balance of Convenience' 'trustee in Bankruptcy' 'sale of Co Owned Real Property' 'sham Transaction' 'superannuation Trust Funds' 'abuse of Process' 'costs of Trustee']
['practice and Procedure' 'bankruptcy' 'equity' 'property Law' 'superannuation'] ['stay Pending Appeal' 'arguable Grounds of Appeal' 'balance of Convenience' 'trustee in Bankruptcy' 'sale of Co Owned Real Property' 'sham Transaction' 'superannuation Trust Funds' 'abuse of Process' 'costs of Trustee']

Case Brief

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Procedural Posture

Application for a Stay Pending Hearing of Appeal / Interlocutory Application Filed 27 September 2013 After Notice of Appeal From Orders Made on 10 September 2013

Legal Issues

  1. 1 ['Whether the appellants established at least one reasonably arguable ground of appeal sufficient to justify a stay pending appeal.' 'Whether the primary judge arguably erred in finding that the property at 1 Bunyula Road, Bellevue Hill was acquired beneficially by Mr and Mrs Coshott as joint tenants rather than with Super Fund trust monies.' 'Whether the primary judge arguably erred in finding sham in relation to the Schlotzsky business cheque account and the Acknowledgment deed.' 'Whether the primary judge arguably erred in finding the proceedings commenced and maintained below were an abuse of process.' 'Whether the primary judge had power to make orders vesting the property in the trustee as trustee for sale and requiring vacant possession.' "Whether order 11.5 concerning payment of the trustee's professional and legal costs from sale proceeds raised an arguable appeal ground." 'Whether irreparable harm and balance of convenience warranted a stay despite the asserted loss of the family home.']

Ratio Decidendi

The stay was refused because none of the four broad grounds in the amended notice of appeal was reasonably arguable. The asserted evidence did not support the contention that Super Fund monies were used to acquire Mr Coshott's beneficial interest; the primary judge's findings of sham were supported by surrounding circumstances and, in context, involved deceptive conduct and sufficient appreciation of their seriousness; the abuse of process challenge was undermined by an express concession on standing and by other reasons for the finding; the absence-of-power challenge failed because s 66G of the Conveyancing Act 1919 (NSW) was accepted as an available source of power and no pleaded ground...

Court Disposition

The appellants' interlocutory application for a stay pending appeal was dismissed; the appeal was expedited; the appellants were ordered to pay the first respondent's costs of the interlocutory application.

Orders

  • ["The appellants' interlocutory application filed 27 September 2013 is dismissed." 'The appeal be expedited for hearing.' "The appellants pay the first respondent's costs of the interlocutory application."]