Coshott v Barry [2015] NSWCA 257

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coshott v Barry [2015] NSWCA 257 Hearing dates: 11 December 2014 Date of orders: 28 August 2015 Decision date: 28 August 2015 Before: McColl JA, Emmett JA, Brereton J Decision: In proceedings 2014/00217301; 2014/00109540: (1) Grant leave to appeal from the decision of Bradd LCM of 20 March 2014. (2) Order Mrs Coshott to file the draft amended notice of appeal at White Book page 266 within 7 days of delivery of this judgment. (3) Appeal allowed in part. (4) Set aside the judgment entered by Bradd LCM on 20 March 2014 against Mrs Coshott in the sum of $41,099.84. (5) No order as to the costs of the Local Court proceedings, to the intent that each party bear its own costs. (6) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott's costs in this Court and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. Summons seeking judicial review – 2014/00217333 (7) Extend the time for commencing the proceedings seeking judicial review of the District Court decisions to 23 July 2014. (8) Set aside the orders of Taylor DCJ made on 2 April 2014. (9) Dismiss the Judicial Review Summons insofar as it sought to challenge the judgment and orders of Bradd LCM made on 20 March 2014. (10) No order as to the costs of the District Court proceedings, to the intent that each party bear its own costs. (11) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott's costs of the Judicial Review Summons and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. Catchwords: BANKRUPTCY – where solicitors sent bill of costs to former clients – joint debtors – where solicitors applied for assessment of costs – where costs assessor issued certificate of determination of costs – where solicitors filed in court copy of certificate to effect entry for purposes of s 208J(3), Legal Profession Act 1987 (NSW) and s 133(3), Civil Procedure Act 2005 (NSW) – where one former client bankrupted between date certificate issued but before certificate filed – where court entered judgment against former clients for amount of costs determined on certificate – whether filing certificate commenced any legal proceeding or was a fresh step in such a proceeding and not competent except with leave – s 58(3)(b), Bankruptcy Act 1966 (Cth) – whether certificate enforceable against joint debtor not bankrupt ESTOPPEL – Issue estoppel – Anshun estoppel – Res judicata – estoppel in the face of a statute LEGAL PRACTITIONERS – Costs – assessment – bill of costs – interest – legal practitioner's entitlement to interest on bills of costs – whether costs assessor has power to determine legal practitioner's claim for interest on bill of costs – s 208E, Legal Profession Act 1987 (NSW) JUDGMENTS – enforcement – where costs assessor issued certificate of determination of costs – where solicitors filed in court copy of certificate to effect deemed judgment – s 208J(3), Legal Profession Act 1987 (NSW) – where certificate did not include amount for interest – where solicitors included on Form 45 filed with certificate amount of interest accrued since date of bill of costs – where court entered judgment against former clients for amount of costs determined on certificate not including amount of interest – whether filing Form 45 constituted effective, if irregular, invocation of ordinary jurisdiction of court in which filed in an action at law for a money sum (being the interest claimed) – whether court had jurisdiction to amend deemed judgment to include amount of interest APPEAL – whether abuse of process to seek judicial review of lower court decisions rather than appeal – leave to appeal – extension of time – where proceedings raise questions of legal principle and public importance – where no prejudice caused by delay APPEAL – where appeal from Local Court should have been commenced in Common Law Division – whether may be continued and disposed of in Court of Appeal – s 51(2), Supreme Court Act 1970 (NSW) Legislation Cited: Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Interpretation Act 1987 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Local Court Act 2007 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: ANZ Banking Group Ltd v Computer Plus [1992] 1 VR 607 Australian Securities and Investments Commission (ASIC) v Michalik (No 2) [2004] NSWSC 1260; (2004) 62 NSWLR 335 Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 Bracks v Smyth-Kirk [2009] NSWCA 401 Calandra v Murden [2015] NSWCA 231 Castillon v P&O Ports [2007] QCA 364; [2008] 2 Qd R 219 Coshott v Barry & Anor [2012] NSWSC 850 Coshott v Barry [2007] NSWSC 1094 Coshott v Barry [2009] NSWCA 34 Coshott v Barry & Anor (No 2) [2012] NSWSC 944 Coshott v Barry (No 3) [2012] NSWSC 1248 Croker v Commissioner of Taxation [2005] FCA 127 Doran v Isaacs (1912) 12 SR (NSW) 699 Drummond and Rosen Pty Ltd v Easey and Ors (No 2) [2009] NSWCA 331 Fraser v Commissioner of Taxation (1996) 69 FCR 99 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 Inasmuch Community Inc v Bright [2006] NSWCA 99 Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas [2012] NSWSC 236 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Muldoon v Church of England Children's Home Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282 PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 R v Baines (1840) 12 Ad & El 210; 113 ER 792 Category: Principal judgment Parties: Ljiljana Coshott (Applicant) Stephen Michael Barry (First Respondent) Martin Pearce Board (Second Respondent) Representation: Counsel: M Brabazon SC and O Jones (Applicant) K G Oliver (Respondents)