Barry v Coshott [2014] NSWDC 51

Barry v Coshott [2014] NSWDC 51

The notice of motion to set aside the filed certificate as judgment is dismissed because only the portion against the bankrupt (Mr Coshott) is invalid, and removal of Mr Coshott as a party promptly cures any procedural defect; furthermore, only unpaid costs (not interest) become a judgment on filing the certificate, but the court may entertain and determine the interest claim supported by evidence. No estoppel (res judicata or Anshun) bars Mrs Coshott from raising the bankruptcy ground as this was not determined previously on the merits.

Jurisdiction
Australia
Judgment Date
13 March 2014
Procedural Posture
Civil / Consequential Orders; Interlocutory Motions on Setting Aside Judgment and Interest
Outcome
Notice of motion to set aside registration of certificate dismissed; Mr Coshott removed as party; Mrs Coshott to pay plaintiffs' costs of that motion; timetable for further evidence on interest; matter stood over for further hearing; costs of plaintiffs' application reserved.
Legal Topics
['effect of Bankruptcy on Joint Judgments' 'costs Assessments Enforcement' 'interest on Legal Costs' 'removal of Parties' 'setting Aside Judgments Due to Bankruptcy']
['bankruptcy Law' 'civil Procedure' 'costs Law'] ['effect of Bankruptcy on Joint Judgments' 'costs Assessments Enforcement' 'interest on Legal Costs' 'removal of Parties' 'setting Aside Judgments Due to Bankruptcy']

Case Brief

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Procedural Posture

Civil / Consequential Orders; Interlocutory Motions on Setting Aside Judgment and Interest

Legal Issues

  1. 1 ["Whether the registration (filing) of a certificate of costs assessment as judgment against Mrs Coshott should be set aside due to Mr Coshott's bankruptcy" 'Whether the court can remove Mr Coshott as a party without invalidating the judgment against Mrs Coshott' 'Whether interest on unpaid costs can be enforced via the certificate filing and to what extent the assessor/court can award interest']

Ratio Decidendi

The notice of motion to set aside the filed certificate as judgment is dismissed because only the portion against the bankrupt (Mr Coshott) is invalid, and removal of Mr Coshott as a party promptly cures any procedural defect; furthermore, only unpaid costs (not interest) become a judgment on filing the certificate, but the court may entertain and determine the interest claim supported by evidence. No estoppel (res judicata or Anshun) bars Mrs Coshott from raising the bankruptcy ground as this was not determined previously on the merits.

Court Disposition

Notice of motion to set aside registration of certificate dismissed; Mr Coshott removed as party; Mrs Coshott to pay plaintiffs' costs of that motion; timetable for further evidence on interest; matter stood over for further hearing; costs of plaintiffs' application reserved.

Orders

  • ["Dismiss the notice of motion by Mrs Coshott (filed 19 December 2013) to set aside the registration of the certificate by reason of Mr Coshott's bankruptcy." "Order Mrs Coshott to pay the plaintiffs' costs of that motion." 'Order the removal of Mr Coshott as a party to the proceedings.' 'Direct Mrs Coshott to file...