Coshott v Shipton Lodge Cobbity Pty Ltd [2004] NSWSC 353

New South Wales Supreme Court

CITATION : Coshott v Shipton Lodge Cobbity Pty Ltd [2004] NSWSC 353 HEARING DATE(S) : 1 April 2004 JUDGMENT DATE : 30 April 2004

JUDGMENT OF : Simpson J DECISION : amended summons to be filed and served; decline to order that Coshott provide security for the costs of the appeal; parties required to bring in short minutes of orders

CATCHWORDS : appeal against the judgment of a Magistrate - flawed summons - abuse of process - security for costs Legal Profession Act 1987 s198L LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 s.69 Supreme Court Rules Part 1 Rule 3, Part 5 Rule 3, Part 13 Rule 5, Part 18 Rule 4, part 38 Rule 4, Part 51A CASES CITED : McWilliam v Penthouse Publications [1999] NSWCA 2, unreported, 21 January 1999 PARTIES : Shipton Lodge Cobbitty Pty Ltd - Applicant Robert Gilbert Coshott - Respondent FILE NUMBER(S) : SC 12167/03 COUNSEL : M A Bradford - Applicant K Burke - Respondent SOLICITORS : Hill Ryner & Company - Applicant Mack & Associates - Respondent

LOWER COURT Local Court JURISDICTION : LOWER COURT 995/00 FILE NUMBER(S) : LOWER COURT Stoddart LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Friday 30 April 2004

12167/03 Robert Gilbert Coshott v Shipton Lodge Cobbity Pty Ltd

JUDGMENT 1 HER HONOUR: By notice of motion filed on 14 November 2003 the applicant (Shipton Lodge Cobbitty Pty Ltd) seeks a variety of orders concerning a summons filed by the respondent (Robert Coshott) on 22 August 2003. Having regard to the proliferation of proceedings, it is convenient to refer to the parties as "Shipton Lodge" and "Coshott". In substance the orders sought by Shipton Lodge fall into two categories: that Coshott's summons be struck out or dismissed in whole or in part; or as a backup to this claim, that Coshott be required to file and serve an amended summons; and an order that Coshott provide security for Shipton Lodge's costs of the proceedings. Consequential orders for costs, and for the assessment of costs on an indemnity basis are also sought. 2 As a foundation for the claim that the summons be struck out or dismissed in whole or in part Shipton Lodge relies upon SCR Part 13 Rule 5 and the inherent power of the Court. In either case it claims that the summons constitutes an abuse of process of the Court. 3 It is now necessary to set out a brief history of the events that give rise to the proceedings. At some time not clearly identified Shipton Lodge made a claim in the Local Court for damages against Coshott. The claim was in contract, arising out of the agistment of horses. On 26 August 2003 a Local Court Magistrate, Mr Stoddart, entered judgment in favour of Shipton Lodge in the total sum of $77,829.64. This sum was made up of the amount claimed by and found to be owing to Shipton Lodge, court costs, interest and professional costs. The Magistrate ordered Coshott to pay Shipton Lodge's costs assessed on an indemnity basis. 4 On 22 August 2003 Coshott filed in this Court the summons the subject of the present notice of motion, by which he appealed against the judgment of the Magistrate. The substantive order that Coshott sought in the summons was an order that the judgment be set aside; he also sought orders setting aside the costs order or, alternatively, the order that the costs be assessed on an indemnity basis; and additionally an order that Shipton Lodge pay his costs of the proceedings before the magistrate and of the appeal. 5 Provision is made for appeals against decisions of Local Court magistrates sitting in the civil jurisdiction by s69 of the Local Courts (Civil Claims) Act 1970. Relevantly, that section provides: "(2) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom. …