A persistent litigant

I see from a recent decision of the Full Federal Court – Coshott v Shipton Lodge Cobbitty Pty Ltd [2008] FCAFC 159 – that a Mr Coshott has failed in his appeal against a refusal of a Federal Magistrate to set aside a bankruptcy notice (see note below as to what this means) issued by Shipton Lodge Cobbitty against him.

I recognized the names from Mr Coshott’s unsuccessful appeals against decisions against him by a Local Court Magistrate in relation to agistment fees for horses payable by him to Shipton and associated matters. I say “appeals” because not only did he appeal a number of decisions, but he also appealed first to the Supreme Court and then, when unsuccessful, to the Court of Appeal.

Obviously, this is a man who does not give up lightly.

Admirable, you might say. Well, yes, up to a point.

When I searched for Mr Coshott (not, after all a particularly common name) on Austlii, I soon found 36 matters in which he is a party, mostly as appellant or plaintiff or applicant. [Admittedly, Mr Coshott was a party in his role as an executor of a deceased estate in one of these proceedings. It’s a difficult case to follow: his purpose appears to have been to maximise his power of choosing which charities should receive the benefit of a sizeable charitable bequest.] That only covers the relatively recent years which are covered by the internet era. I have found another 8 going back to 1984 on a commercial legal data base.

Mr Coshott commenced practice as a solicitor in 1976. He practised on his own account in Double Bay. In 1991 (not long after the Law Society commenced a formal investigation of his practice) he closed his own practice and did not renew his practising certificate. Most of his files were transferred to what the Court of Appeal described as “an associated firm,” Gunn Hamilton and Blay.

In March 1995, the Legal Services Tribunal ordered that Mr Coshott’s name be removed from the roll of solicitors – that is, colloquially, that he be struck off. Mr Coshott appealed against this order and it was stayed. In the meantime, in June 1997, the Tribunal made a further order that Coshott be struck off. Coshott appealed against this decision also. Both appeals were heard together in October 1997. In December 1997, the first appeal was upheld in part, but the order to strike Mr Coshott off was confirmed. The second appeal was dismissed. Coshott was no longer a solicitor.

This hasn’t kept Coshott away from the courts. If anything, his enthusiasm seems to have increased. But in Shipton Lodge he appears to have met his equal in litigious persistence and determination.

The first claim brought against him (and his wife) by Shipton Lodge was for agistment fees in relation to two horses. Commenced in late 2000, it was eventually fought out over 6 days in April 2003. Some of the procedural history can be traced in the first decision in relation to his appeal against this, which was by Justice Simpson in 2004.

Shipton obtained a judgment of $77,729.00 (including $45K indemnity costs) on its first claim.

Before that case could be heard, one of the horses died. Coshott and his wife (I will just say Coshott as Mrs Coshott appears to be guided by her husband in these matters, though some of the matters below such as steps in enforcement only relate to Mr Coshott) brought a cross claim against Shipton alleging negligence in its care of the horse. This claim was determined separately. It was dismissed.

It is a measure of Shipton’s determination that even before the first claim was heard, Shipton became substituted creditor in proceedings to send Mr Coshott bankrupt. That is, when another creditor dropped out, Shipton took its place in propounding the applicaton. These proceedings ultimately failed when (in one of his biggest wins ) Coshott successfully appealed the judgment by reason of which he was insolvent. This was a typical Coshott victory. It rested on a technicality concerning the exercise of an option with the result that the other party had failed to exercise the option so that Coshott got to keep $1.25 million whilst the other party was left with shares which were worth nothing. But that’s the law: options are very strict and technical things.

Shipton got out of that fairly lightly: Mr Coshott had to pay Shipton’s costs. Undeterred, Shipton then took steps under the Unclaimed Goods Act to sell the remaining horse and recover charges for its care. In the face of maximum evasion/obstruction by Coshott (he couldn’t be found, and refused to instruct his solicitor to accept service) they finally got an order authorising them to sell the horse – it sold at auction for $319.00 (nett $253.26) – and a judgment for $6,838.74 (that is, the costs of caring for the animal up to sale and legal costs of $3,000 less the nett proceeds from the auction).

Coshott appealed the second and third Local Court decisions. All three matters were heard together by Justice Johnson of the NSW Supreme Court in August 2005. He handed down his decision in June 2006. (Why so long? you may well wonder.) Coshott lost all three appeals.

Coshott appealed all three matters to the Court of Appeal. Those appeals were heard in November 2006 and dismissed on the day.

Shipton issued a bankruptcy notice on the first Local Court judgment. Coshott did not pay the debt. Shipton presented a creditor’s petition. Coshott reached an agreement with them where he paid the amount of the judgment and a further $1,000 and the creditor’s petition was dismissed.

Shipton then issued a bankruptcy notice on the second local court judgment in its favour (that is, Coshott’s failed cross-claim, which resulted in an order in April 2004 for $35,862.92 in Shipton’s favour, which must basically have been Shipton’s costs). Coshott applied for it to be set aside, including on the ground that the agreement which he had reached in relation to the creditor’s petition operated to discharge both debts, even though he had actually paid only one. He also said that because the judgment was in a mater which should have been commenced in the Small Claims Division of the Local Court there was no power to order costs against him or that even though the magistrate had fixed the costs by order he was still entitled to have the costs assessed.

Federal Magistrate Diver dismissed this application in February 2008. The Full Court dismissed Coshott’s appeal in August 2008 – which brings us back to where we started. Either Coshott is now offering payment to Shipton (not necessarily of all the debt) or else they are now pressing ahead with a creditor’s petition.

There may well be other creditors who would like to see Coshott bankrupt, because Coshott has lost quite a few other matters in recent years. In 2007 he failed in a claim against his former solicitor in relation to what he alleged to be their negligence, in part because of what is known as “advocate’s immunity” but also in one instance because the judge held that Coshott’s claim that the solicitor had failed to advise him failed because he would not have followed the advice anyway. What Coshott complained of not being advised of was in essence what the solicitor had initially advised he should do. It was Coshott who had insisted in pressing all sorts of other claims. The case gives a handy catalogue of some of the matters Coshott has been involved in.

The above account only scratches the surface. Coshott has sued his neighbour, a joiner, someone who put windows into his house, Woollahra Council, and as of 2006 and 2007 had started taking steps to recover fees due to him for work he had done prior to closing his practice in 1991. He has refused to pay strata levies and fought a rearguard action against their recovery in court. He has been in litigation against Citibank and the Commonwealth Bank. If you can bear to do your own rummaging around you will see more of his work.

As a legal practitioner, embarking on legal proceedings on my own account is the very last thing I would ever like to do, but there does seem to be a species of person, and in particular former practitioners, who relish in it and who can, by means of their skills (exercised without the constraints of any professional obligations as to reasonable prospects) cause a great deal of trouble to others.

Explanatory footnote:

A bankruptcy notice is a preliminary to sending someone bankrupt. If you have a judgment against you, the judgment creditor can issue a bankruptcy notice requiring you to pay that debt within a specified time, unless you get it set aside. If you don’t, you have committed an act of bankruptcy. This will then enable an application (a creditor’s petition) to send you bankrupt. Once you are bankrupt, a trustee is appointed to sell all or virtually all of your property and distributes the proceeds pro rata (after paying the trustee’s expenses) to your creditors. You have to contribute any income you earn during your bankruptcy over and above a quite modest amount until (normally) another 3 years pass or all the debts are paid (if that happens sooner). You are no longer liable for the debts which could have been paid by the trustee from such funds.

Afterword

Since I wrote this post, judgment has been published on the net (it was actually given on 17 September) in a further appeal by Mr Coshott – in this case against a costs order in his saga involving Woollahra Council.  In this case it is complicated and I can’t begin to summarize it, but the short form summary is that, in my view at least, a higher court has yet again been fairer to Mr Coshott than he really deserves.

3 Responses to “A persistent litigant”

  1. Legal Eagle Says:

    We’ve got some of those guys here in Vic too. Sometimes, dedication to a cause becomes counterproductive. Particularly with LIPs.

  2. marcellous Says:

    I think you are a bit too kind to Mr Coshott.

    The problem is that even though Coshott loses most of his reported actions these days, it’s not entirely counter-productive for him. He puts his opponents to a lot of trouble and expense and for all the reported losses I bet there are other cases where he has worn his opponents out or scared them off and maybe got a settlement to his nett advantage. Note, for example, the tactical use of the cross-claim against Shipton. I wouldn’t be surprised if other actions, such as the claim against Barry, his former solicitor, were responses to proceedings or threatened proceedings for payment.

    See my afterword above as to the latest instalment in Coshott’s arguments with Woollahra Council. The house itself which provoked the arguments appears to have been sold by him in 2000 (though it may well have been at the instance of Citibank, his then mortgagee), as to which see this story from 2002 listing the top 200 home sales in Sydney, which includes “114: $6 Gilliver Av, Vaucluse Coshott/Thomas 2000.” (Thats in millions of course.) That gives you, incidentally, an idea of his litigious stamina.

  3. DRD Says:

    You will find that Mr Coshott has lost his most recent litigous crusade in Cufurovic v Coshott NSWSC 372 – his actions being labelled an “abuse of process” by Hislop J.

    I recommend that anyone who is involved in litigation with this so and so read the judgment- gives an indication of the sort of behaviour he gets up to.

    You will also find that Mr Coshott has now been declared a bankrupt. [Balance of comment deleted on grounds of discretion as being not presently independently verifiable.]

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