Coshott v Barry [2015] NSWCA 257

Coshott v Barry [2015] NSWCA 257

Where an assessor’s certificate does not quantify interest, the deemed judgment arising from its filing under Legal Profession Act 1987 (NSW) s 208J(3) does not include interest; courts below erred in adding interest or attempting to correct records to do so. Bankruptcy Act 1966 (Cth) s 58 does not prevent enforcing or entering judgment against a non-bankrupt joint debtor; the processes against Mrs Coshott as non-bankrupt debtor were valid. Estoppel did not prevent Mrs Coshott's challenge given the statutory context.

Parties
Applicant: Ljiljana Coshott; First Respondent: Stephen Michael Barry; Second Respondent: Martin Pearce Board
Jurisdiction
Australia
Judgment Date
28 August 2015
Procedural Posture
Appeal and Judicial Review / Court of Appeal Judgment on Appeals and Judicial Review From District and Local Courts
Outcome
Appeal allowed in part; some orders set aside; leave to appeal granted; judicial review time extended; interest awards made by lower courts overturned; no order as to costs in lower courts; partial costs orders in Court of Appeal.
Legal Topics
Bankruptcy and Provable Debts, Costs Assessment and Recovery, Interest on Legal Costs, Litigation Procedure, Joinder and Removal of Parties, Estoppel (issue/anshun), Judgments – Enforcement and Correction
Bankruptcy Civil Procedure Legal Profession Costs Bankruptcy and Provable Debts Costs Assessment and Recovery Interest on Legal Costs Litigation Procedure +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 34 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Ljiljana Coshott

Applicant

Stephen Michael Barry

First Respondent

Martin Pearce Board

Second Respondent

Procedural Posture

Appeal and Judicial Review / Court of Appeal Judgment on Appeals and Judicial Review From District and Local Courts

Legal Issues

  1. 1 Whether the filing and entry of judgments on costs certificates against joint debtors, one of whom was bankrupt, were invalid under s 58(3)(b) of the Bankruptcy Act 1966 (Cth)
  2. 2 Whether solicitors could enforce judgments against the non-bankrupt joint debtor
  3. 3 Whether a Costs Assessor could include and quantify interest in a costs certificate under the Legal Profession Act 1987 (NSW)

Ratio Decidendi

Where an assessor’s certificate does not quantify interest, the deemed judgment arising from its filing under Legal Profession Act 1987 (NSW) s 208J(3) does not include interest; courts below erred in adding interest or attempting to correct records to do so. Bankruptcy Act 1966 (Cth) s 58 does not prevent enforcing or entering judgment against a non-bankrupt joint debtor; the processes against Mrs Coshott as non-bankrupt debtor were valid. Estoppel did not prevent Mrs Coshott's challenge given the statutory context.

Court Disposition

Appeal allowed in part; some orders set aside; leave to appeal granted; judicial review time extended; interest awards made by lower courts overturned; no order as to costs in lower courts; partial costs orders in Court of Appeal.

Orders

  • Grant leave to appeal from the decision of Bradd LCM of 20 March 2014.
  • Order Mrs Coshott to file the draft amended notice of appeal within 7 days of judgment.