Coshott v Principal Strategic Options Pty Ltd

5 The only additional comment we would make is that we do not express any view on the question whether, in Mr Coshott's case, the relief that would have been available to him under reg 4.08 would have differed from that obtainable in the present proceeding.

BACKGROUND 6 To understand the various claims made before the primary judge and on this appeal, it is necessary to refer in a little detail to the factual setting. The following is drawn directly from the reasons of the primary judge. 7 On 28 March 2000 PSO obtained a judgment in the Supreme Court of New South Wales ('the Supreme Court') against Mr Coshott in the sum of $1,355,239.74. On 14 April 2000 Mr Coshott filed a notice of appeal against the judgment of the Supreme Court. The judgment was not stayed. 8 On 1 June 2000 PSO caused a bankruptcy notice to be served on Mr Coshott. The bankruptcy notice required Mr Coshott within 21 days to pay the judgment debt or to make an arrangement satisfactory to PSO for settlement of the judgment debt. Mr Coshott did not comply with the bankruptcy notice or apply to set it aside. As a consequence he committed an act of bankruptcy within the meaning of s 40 of the Bankruptcy Act. 9 On 28 June 2000 PSO presented to the Court a creditor's petition under s 43 of the Bankruptcy Act seeking the making of a sequestration order against the estate of Mr Coshott ('the Creditor's Petition'). On the same day PSO filed an application seeking an order under s 50 of the Bankruptcy Act. On 29 June 2000 the application for an order under s 50 was heard. Mr Coshott did not appear at the hearing. Upon PSO giving the usual undertaking as to damages, the Court made the interlocutory order. The terms of the undertaking are set out below. 10 On 7 September 2000 Shipton Thoroughbreds Pty Limited ('Shipton') was substituted for PSO as the petitioning creditor in the Creditor's Petition. 11 Sometime during September 2000 Mr and Mrs Coshott ceased to live at 5 Gilliver Avenue, Vaucluse ('the Vaucluse property') as a consequence of orders for possession having been obtained against them by the mortgagee of the property, Citibank Limited. Contracts for the sale of the Vaucluse property were exchanged on 18 November 2000. On 21 December 2000, $1,195,394.73, being one half of the net proceeds of the Vaucluse property, was paid to the Trustee. On 29 December 2000, $1,020,257.77, being Mrs Coshott's share of the proceeds of sale of the Vaucluse property was paid to Mrs Coshott. 12 On 24 April 2001 the New South Wales Court of Appeal allowed Mr Coshott's appeal and the judgment of the Supreme Court of 28 March 2000 was set aside. 13 On 8 May 2001 the primary judge ordered that the Creditor's Petition be dismissed. On 10 May 2001 orders were made by consent which brought to an end the trusteeship which came into effect by reason of the interlocutory order. However, the Trustee was authorised to retain the sum of $10,000 as security for the payment of his expenses and remuneration. 14 On 15 May 2001 Mr Coshott's solicitors received a cheque in the sum of $1,195,718.19 from the Trustee. Later that month Mr Coshott filed his notice of motion seeking the taking of an account of the losses suffered by him as a consequence of the interlocutory order. Mrs Coshott, as we have noted, did likewise on 5 September 2002. 15 On 15 August 2001, the Trustee was ordered by consent to pay to Mr Coshott's solicitors the sum of $10,000 retained by him plus any interest earned on that sum.

THE 'USUAL UNDERTAKING' AND ITS ENFORCEMENT 16 It is agreed by the parties that the undertaking given in relation to the s 50 orders was in the terms of that contained in Federal Court Practice Note 3. It was an undertaking: '(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and (b) to pay the compensation referred to in (a) to the person there referred to.' 17 PSO has conceded that, in consequence of the judgment debt founding its creditor's petition being set aside on appeal, both Mr and Mrs Coshott are persons 'adversely affected' by the s 50 orders. 18 Both parties accept that the principles to be applied in assessing compensation pursuant to the undertaking are those stated in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249. No issue is taken with the primary judge's formulation of those principles and, for convenience, we reiterate her Honour's formulation of them: (a) the Court has a discretion not to enforce an undertaking as to damages, but unless the respondent has been guilty of conduct that would render it inequitable to enforce the undertaking it will be just, speaking generally, for an applicant who fails on the merits to recompense the respondent for the damage suffered by him or her as a result of the making of the interlocutory order (see Gibbs J at 311 - 312);

(b) it is necessary to draw a distinction between results which are caused by the making of the interlocutory order and those which flow from the fact of the litigation itself (see Barwick CJ at 310; Gibbs J at 312 and Stephen J at 315);

(c) generally speaking, the damages must be confined to loss which is the natural consequence of the interlocutory order under the circumstances of which the applicant for the order had notice (see Gibbs J at 312 and the authorities there cited and Stephen J at 319);

(d) the making of the interlocutory order must have been a cause without which the damage would not have been suffered (Gibbs J at 313 and Stephen J at 320); and

(e) the onus of proof in respect of the damage claimed lies on the respondent who asserts that he or she sustained damage by reason of the making of the interlocutory order (see Gibbs J at 313 and Stephen J at 316 and 320).

(a) Mr Coshott 19 Claims were made for compensation under eight different heads. For present purposes it is only necessary to refer to the three which are in issue in this appeal. 20 The first related to loss of increase on the capital value of a home which would otherwise have been purchased. Her Honour dismissed this claim on the basis that Mr Coshott had not established that, were it not for the s 50 orders, he would have been in a position to purchase a home of the kind he intended to purchase earlier than 8 May 2001 (i.e. the day the Creditor's Petition was dismissed). Rather his inability to purchase resulted from his inability to obtain financial assistance from his designated lender until that petition was dismissed. 21 The second presently relevant head of claim related to the cost of photocopying of documents that Mr Coshott was required to produce under the orders (as later varied by a judge of this Court). Her Honour rejected this claim as Mr Coshott had not established the necessary connection between the costs incurred by him for sorting and photocopying the documents, and the s 50 orders. 22 The third head of claim related to the difference between the interest actually earned by Mr Coshott's money in the Trustee's trust account and the interest which he could have earned. Her Honour made a small award under this head.

(b) Mrs Coshott's claims 23 Mrs Coshott advanced two claims, both unsuccessfully. The first, mirroring her husband's, was for loss of increase on the capital value of a home which would otherwise have been purchased. This was rejected for similar reasons to those which led to the rejection of Mr Coshott's claim. The second claim, for storage charges for personal items and furniture, was a subsidiary claim to the first and fell with it.

The Present Appeal 24 Mr and Mrs Coshott, respectively, have appealed against her Honour's orders in respect of the above claims. It is necessary to deal with each of these in turn, although the appellants' separate claims for the loss of increase on capital value can be considered together.

GROUNDS OF APPEAL 3 - 16: LOSS OF INCREASE ON CAPITAL VALUE 25 Before referring to the substance of these grounds it is necessary to refer to one procedural matter. The appellants have sought leave to further amend the Notice of Appeal by adding new grounds 6 and 7. We have referred to the fact that the Creditor's Petition was not dismissed until 8 May 2001 and to 'her Honour's finding that the Coshotts were unable to obtain financial assistance to purchase the type of house they intended to buy until that petition' had been dismissed. The proposed new grounds 6 and 7 are that: '6. Her Honour erred in not considering when the Creditor's Petition could have been dismissed. 7. Her Honour ought to have found that the Creditor's Petition could have been dismissed on 21 December 2000, or shortly thereafter.' 26 It is fair to say that these two grounds encapsulate the principal challenge that the appellants now wish to make to the primary judge's rejection of their claim. Their submissions are premised upon leave being given. 27 The respondent opposes the leave sought on the basis that these were not matters that were in issue before the primary judge; they are matters on which evidence in rebuttal could have been brought; the appellant ought not be permitted to run a case not run below; the rule in Water Board v Moustakas (1988) 180 CLR 491 at 497 should be applied strictly. 28 To appreciate the significance of the issue sought to be raised it is necessary to refer to her Honour's findings on the matter of the intended house purchase and the context in which they were made. 29 On the basis of the accepted evidence of Mr and Mrs Coshott and of Mr Coshott's brother, Ronald, who is managing director of Fewin Pty Ltd, the primary judge found: (a) the only intention formed by Mr Coshott between 29 June 2000 and 10 May 2001 with respect to the purchase of a home, whether jointly with Mrs Coshott or alone, was to purchase a four to five bedroom home in Vaucluse, or perhaps in a comparable nearby suburb, at a price of around $2,000,000;

(b) to settle on the purchase of a home for around $2,000,000 at any time between 29 June 2000 and 10 May 2001, Mr Coshott would have needed to buy the property together with Mrs Coshott, or otherwise to have gained access to funds belonging to Mrs Coshott, and to have obtained additional funds from Fewin Pty Limited; and

(c) Fewin Pty Limited would not have lent any significant sum to Mr Coshott to assist him in purchasing a home at any time earlier than the date on which the creditor's petition against Mr Coshott was dismissed. 30 Her Honour went on to note that the Creditor's Petition was dismissed on 8 May 2001 and two days later - an immaterial period for the purposes of this head of claim - orders were made by consent bringing an end to the s 50 trusteeship. 31 In light of these findings it was concluded that Mr Coshott had not established that, were it not for the s 50 orders, he would have been in a position to purchase a home of the kind that he intended to purchase earlier than 8 May 2001. Fewin Pty Ltd would not have provided him with financial assistance to purchase a home before 8 May 2001. In consequence such loss as he suffered from being unable to purchase a home flowed, not from the making of the s 50 orders, but from the fact of the bankruptcy proceeding which was not terminated until the 8 May 2001 dismissal of the Creditor's Petition. 32 We would emphasise, as her Honour noted, that Mr Ronald Coshott accepted in cross-examination that his preparedness to lend to Mr and Mrs Coshott was on the proviso that the bankruptcy petition was dismissed because, as he said, he might otherwise 'get caught up in the bankruptcy'. 33 Turning to the setting in which her Honour reached her conclusions, it is clear that, as matters stood at the time PSO presented its Creditor's Petition, Mr Coshott was probably insolvent. Mr Coshott's own affidavit evidence as of 9 April 2001 reinforces that conclusion. That evidence was that he had assets of $1,208,374.00 (including the moneys in the Trustee's hands resulting from the sale of the Vaucluse house); he had admitted debts of $580,177.07 and disputed debts of $133,235.12. Excluded, though, from his debts was the then judgment debt owed PSO of $1,355,239.74. That debt alone exceeded his assets. 34 The Opening Statement filed by the Coshotts in support of their motions as it related to this claim did no more than indicate that, by reason of the s 50 orders, Mr Coshott's half of the nett proceeds of sale were under the control of the Trustee from about 21 December 2000 to about the end of May 2001. As a consequence they were unable to make the purchase they intended. They so ascribed their loss to the orders themselves. No suggestion was made that their purchase was impeded because of the continuation until 8 May of the bankruptcy proceedings and that without the s 50 orders Mr Coshott could have secured the dismissal of the Creditor's Petition. It is the case, though, that in relation to another head of claim (Claim 8 in respect of legal costs) it was contended that had the s 50 orders not been made, Mr Coshott would have been able to deal with his other creditors and make alternative financial arrangements with them. 35 The purpose of the amendment now sought is so as to permit the Coshotts to advance the case that but for the s 50 orders they could have secured the dismissal of the Creditor's Petition. They seek to be able to put the following propositions. (i) By the time of the s 50 orders Shipton had been substituted for PSO as petitioning creditor and the debt owed to it was in the order of $50,000 (though not all of this was undisputed). (ii) If the s 50 orders had not been made, Mr Coshott would have received $1,195,394.73 on the sale of the Vaucluse property. (iii) Had he received that sum he would have paid out Shipton and would have had the Creditor's Petition dismissed. (iv) Therefore, but for the s 50 orders, he could and would have been in a position to buy another property with his wife. (v) Her Honour erred in making no finding as to the date upon which the Creditor's Petition would have been dismissed, but for the s 50 orders. 36 The respondent's contentions in opposition to the amendment also address the substance of the argument the appellants now seek to advance. The premise of those contentions is that unless and until PSO's judgment debt was set aside Mr Coshott remained hopelessly insolvent. In those circumstances, it is contended that: (i) it is unlikely that the respondent would have consented to the petition being dismissed and would have sought to become a substituted petitioning creditor; (ii) some other of Mr Coshott's creditors would not have accepted payment of their debts whilst the petition and judgment remained on foot (as his insolvency was apparent); (iii) the petition would have remained on foot until the Supreme Court set aside the judgment. 37 More fundamentally, as we earlier noted, the respondent submits that the case now sought to be put was not put below. That case could possibly have been met by the calling of evidence below. All of the facts have not been 'established beyond controversy': Water Board v Moustakas, at 497. 38 In our view leave to amend should not be given. It is fair to conclude that the reasons the primary judge did not consider whether the Creditor's Petition could or would have been dismissed at a date earlier than it was dismissed, were, first, because that was not an issue raised before her relating to this head of claim; and, secondly, because on the material before her the insolvency of Mr Coshott was manifest unless and until the judgment debt was set aside with the consequent unlikelihood of some at least of the creditors including PSO agreeing to the dismissal of the petition. 39 If the appellants were permitted to raise this new issue it may well be unlikely in any event to lead to any different result. More importantly, though, that issue presupposes the satisfactory making out of a counterfactual state of affairs - i.e. Shipton agreeing to be paid and no creditor being prepared to be substituted for Shipton: see Bankruptcy Act, s 49; cf McNamara v Langford (1931) 45 CLR 267 - which has not been the subject of evidence at all. As was said in the Water Board case (at 497) 'a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below'. 40 What remains of the appellants' appeal on the 'Loss of increase on Capital Value' falls within a narrow compass. 41 The appellants' contention is that her Honour erred in finding that they would not have been in a position to purchase a home prior to the dismissal of the Creditor's Petition on 8 May 2001. Rather, it is said, the correct date was 24 April 2001 when the judgment debt was set aside and Mr Coshott's solvency was established. The appellants further contend that Mr Coshott did not receive his funds from the Trustee until 30 May 2001. Whichever of the two dates (i.e. 8 May 2001 or 24 April 2001) was the correct date from which it could be said the Coshotts were in a position to purchase a home, they suffered loss from that date until 30 May when Mr Coshott received his proceeds from the Vaucluse sale. They are entitled to be compensated for that loss. 42 The respondent's contention is that her Honour properly concluded on the evidence that it was the pendency of the bankruptcy proceedings and not merely a lack of solvency that was the obstacle to the Coshotts' purchase of a house. For this reason the correct date was that found by her Honour, being 8 May 2001. 43 Furthermore the evidence is that Mr Coshott's solicitors received the proceeds of sale from the Trustee on 15 May 2001. From that date the money was subject to his control and disposition. 44 It is contended additionally that, on and from 8 May 2001, there was no impediment to the Coshotts acquiring a house and the s 50 orders in no way prevented them from doing so. They clearly had money to pay for any likely deposit. Financial assistance was available to them on Ronald Coshott's evidence. No evidence was given that the appellants wished to, or tried to, purchase a house between 8 May and 15 (or 30) May 2001 but were prevented from doing so because of the non-receipt of the funds. Again, it is said, the appellant are attempting to advance an argument not pursued at first instance. 45 In our view, the primary judge cannot be faulted for not finding that the Coshotts suffered a compensable loss for any one of the periods 24 April 2001 to 30 May 2001, 24 April 2001 to 15 May 2001, 8 May 2001 to 30 May 2001 or 8 May 2001 to 15 May 2001 on which the appellants rely in the alternative. 46 In our view, the correct terminal date of the impediment to the Coshotts purchase of a house was, on the evidence, 8 May 2001 when the Creditor's Petition was dismissed and the prospect of Fewin Pty Ltd being 'caught up in the bankruptcy' was eliminated. Equally, the correct date upon which Mr Coshott can be said to have received the proceeds was 15 May when his agent, the solicitors, received a cheque from the Trustee. But even if one or other or both of the other dates advanced by the appellants were the correct terminal and receipt dates respectively it would be of no consequence in this appeal. 47 The Coshotts have not established that they have suffered any damage for any of the above periods as a consequence of Mr Coshott being kept out of his money, notwithstanding that it was the s 50 orders which created the state of affairs without which such a delay would not have occurred. 48 There was no evidence of any actual impediment to their making a purchase which resulted from the s 50 orders and which occasioned a loss to them. There was no evidence of distinctive conveyancing practices in New South Wales that would have precluded them from contracting to purchase prior to Mr Coshott's receipt of the proceeds. There was no evidence that Frewin Pty Ltd was not from 8 May 2001 prepared to provide financial assistance. There was no evidence that they intended, but were unable as and from that date until 15 May, to contract to purchase a house. 49 We would dismiss the appeal as it relates to the 'Loss of Increase in Capital Value'. We would add that it is unnecessary that we express a view on the appropriateness of the measure of damage advanced in this head of claim and we refrain from doing so.

GROUNDS OF APPEAL 20 - 22: PHOTOCOPYING COSTS 50 One of the s 50 orders made on 29 June 2000 required Mr Coshott to deliver to the Trustee within seven days all books, documents, papers and writings in his or her possession or power relating to his dealings, property or affairs. 51 On 18 July that order was varied on the application of Mr Coshott though not in the manner sought by him. The following paragraph was added to the s 50 orders: 'that, the Trustee be authorised to redeliver to the respondent debtor such of the books, documents, papers and writings delivered by the respondent debtor to the trustee pursuant to Order 7 if reasonably satisfied that the respondent debtor requires such books, documents, papers and writings for the purpose of the prosecution of his appeal in the Supreme Court of New South Wales.' 52 The documents were not in fact delivered to the Trustee until mid-November 2000. 53 It was Mr Coshott's evidence that his documents were contained in four large cardboard shipping containers. Apart from documents relating to his appeal against the judgment debt, he had three other proceedings on foot and the documents in the shipping containers included those relating to those other proceedings. Between the date of the variation order and mid-November 2000, when he handed over his documents pursuant to the order, he engaged a company to sort and photocopy the documents in the four containers at a cost of $3,475.00. He claimed this sum as a loss falling within PSO's undertaking. 54 Her Honour concluded that Mr Coshott was not entitled to be compensated for the cost of having his containers photocopied and sorted. If he required access to documents in the cartons to prosecute litigation he would have needed to sort the documents irrespective of the s 50 orders. More importantly in her Honour's view Mr Coshott was in reality seeking to be compensated in respect of a course of conduct adopted by him in disregard of the requirements of the s 50 orders. He had not established the necessary connection between the costs incurred by him and the operation of the orders. 55 The appellants' contentions are that the primary judge was in error and should have found that: (i) being required by the orders to deliver his documents to a third party, he was entitled to protect himself against the possibility that documents would be lost by copying them; (ii) the copying was reasonably necessary for the prosecution of the various cases he had on foot at the time; (iii) sorting was a necessary component of the photocopying; and (iv) but for the s 50 orders the documents would not have been required to be delivered to the Trustee. 56 The respondent contends, correctly in our view, that there was no error in her Honour's conclusion and that the claim was correctly rejected for the reasons she gave. 57 We would only add by way of emphasis that Mr Coshott acted to suit his own purposes in disregard of the s 50 orders. The cost of his self-indulgence is not a matter for which PSO ought in fairness be held responsible. It was not occasioned by 'the operation of the interlocutory order'.

GROUNDS 28 - 30: THE INTEREST WHICH COULD HAVE BEEN EARNED 58 Mr Coshott's funds in the Trustee's trust account accrued interest at an average rate of 4.9 percent. Her Honour found that, had the s 50 orders not been made, Mr Coshott would have made a term deposit with Westpac of approximately $633,458 and that it seemed likely on the whole of the evidence that he would have earned slightly more interest on that deposit than would have been payable on a typical Cash Management Trust. 59 For the purposes of this claim it was necessary to deduct from the amount of interest Mr Coshott's 'investment' would have earned, the interest actually received by him on the funds held in the trust account, other than the funds which were ultimately paid to creditors. The balance found by her Honour was $850. 60 Compensation in respect of the loss of access to the funds eventually paid to creditors was calculated under a separate head of claim (Claim 4). That separate head of claim related to additional interest Mr Coshott had to pay on his debts after the proceeds of the Vaucluse property were paid to the Trustee and until 8 May 2001. Deducted from that interest to be paid was the interest received on the funds necessary to satisfy those debts which were part of the funds in the trust account. The interest on debts so lost (after giving credit for the interest earned) was found to be $4,543.04. 61 As to the interest claim the subject of the present appeal, it is the appellants' contention that the primary judge erred in the calculations she made. It was originally submitted that her Honour ought not have deducted from the interest notionally earned, the interest actually earned on the trust account, as that latter interest had already been deducted under the separate head of claim (i.e. Claim 4) noted above. 62 That particular contention is unsupportable. Under the Claim 4 head, her Honour only deducted interest that was attributable to a sum equal to the value of the debts owed and not interest attributable to the entirety of the funds in the account. 63 In oral submissions a different contention was advanced. It was that, while her Honour correctly recognised: (i) that she had notionally to divide the trust account; and (ii) that she should only take account of interest actually received 'other than [on] the funds which were ultimately paid to creditors', her Honour in fact failed to make that division in her actual calculations. 64 At best this is an inference we are asked to draw and one, moreover, founded essentially upon what are said to be possible calculations of the sums in question. It is not an inference that ought properly be drawn in the circumstances. Her Honour illustrated both the paucity of, and uncertainties in, the evidence before her on this head of claim. Her conclusion was born of that state of affairs: '… it would be unrealistic to attempt a precise calculation of the compensation to which Mr Coshott is entitled under this head; the factual tools necessary for this calculation are not available to me. Doing the best I can with the evidence available, I propose to award Mr Coshott compensation of $850 under this head.' 65 Her Honour having recognised the process that notionally was to be engaged in, committed no appealable error in taking the course she did given the unyielding character of the evidence.

GROUND 23: THE STORAGE CHARGES 66 The appellants accept that this claim stands or falls on the outcome of their claims in respect of the 'loss of increase on capital value'. We have dismissed the appeal in relation to those claims and will, accordingly, dismiss the appeal in respect of this head of claim.

ORDERS 67 The appellant raised, but the parties did not pursue, the question whether or not the judgment appealed from was final or interlocutory in character. We have proceeded on the basis that it was a final judgment in that it finally disposed of the rights of the parties: see Cubillo v Commonwealth (2001) 112 FCR 455 at 504. Leave to appeal was not required. However, even if leave were required, in light of the substantive effect of the orders that were made, we would have been disposed to grant leave but nevertheless dismiss this appeal. 68 The orders of the Court will be:

1. Leave to further amend the Amended Notice of Appeal be refused; and
2. The appeal be dismissed with costs.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett and Selway.

Solicitor for the Appellant: Hill, Ryner & Company