Brett Leybourne v Joseph Habkouk - [2011] NSWSC 1223

Supreme Court

New South Wales

Medium Neutral Citation: Brett Leybourne v Joseph Habkouk and Ors [2011] NSWSC 1223
Hearing dates: 8 April 2011, 21 April 2011, 15 August 2011, 31 August 2011, 1 September 2011
Decision date: 14 October 2011
Jurisdiction: Equity Division
Before: Sackar J
Decision:
See paragraphs 103 - 105 of Judgment

Catchwords: Setting aside -
Consent Judgment -
Legislation Cited: Civil Procedure Act 2005 (NSW) District Court Rules
Uniform Civil Procedure Rules 2005 (NSW) 1973 (NSW)
Contracts Review Act 1980 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Coles v Burke (1987) 10 NSWLR 429
The Deputy Commissioner of Taxation v Meredith (No 2) [2007] NSWCA 354
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Paino v Hofbauer (1988) 13 NSWLR 193
Jeffery & Katauskas Pty Limited v. SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v. Rickard Constructions Pty Limited [2009] HCA 43 (13 October 2009)
Hunter v Chief Constable of the West Midlands Police [1981] 3 All ER 727
Texts Cited: Nil
Category: Principal judgment
Parties: Brett Leybourne - plaintiff
Joseph L Habkouk - first defendant
Jasica Pty Ltd t/as Megaw and Hogg Property Valuations (NSW) - second defendant
Representation: Litigant in person - plaintiff
AC Casselden - 1st defendant
A Zahra - 2nd defendant
Litigant in person - plaintiff
Finlaysons - 1st defendant
DLA Piper - 2nd defendant

File Number(s): 2010/372339

Judgment

The Proceedings

These proceedings involved the hearing of two motions brought by the plaintiff and a motion brought by each of the defendants.

The plaintiff's amended motion which I granted him leave to file on 21 April 2011 seeks relevantly the following orders:

(a) Pursuant to rules 35.15 and 36.16 (2)(d) of the Uniform Civil Procedure Rules 1995 (sic) that the Honourable Court set aside the Consent Judgment/Order 12777/08 in favour of Gregory Wickham as a director of the second defendant on the basis of sufficient cause being shown and the order was given and/or entered irregularly and against good faith;

(b) Pursuant to rules 35.15 and 36.16 of the Uniform Civil Procedure Rules 1995 that the Honourable Court set aside the Consent Judgment/Order 12777/08 in favour of Jasica Pty Limited trading as Megaw & Hogg Property Valuations (NSW) as the second defendant on the basis of sufficient cause being shown and the judgment/order was given and/or entered irregularly and against good faith;

(c) That leave be granted by this Honourable Court to join Gregory Wickham in the matter no 2010/372339 as the third defendant;

(d) First and Second Defendants to pay the Plaintiff's costs of and incidental to the notice of motion.

After the matter had been adjourned the plaintiff filed an additional motion which I heard on the resumed dates, 31 August and 1 September. That motion sought relevantly the following:

"1. That the Honourable court grant leave pursuant to UCPR 49.20(4) to the applicant to file the notice of notice to review the registrar's judgment order of 2 July 2009, and chief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 1223
Decision Date: 14 October 2011

CaseChat Overview and Summary

The dispute between Brett Leybourne and Joseph Habkouk involved a consent judgment that was reached in the Federal Circuit and Family Court of Australia. The judgment was initially agreed upon by both parties, but later, Brett sought to set it aside due to issues that arose after it was entered. The case centred around the enforcement and validity of the consent judgment in light of new developments and circumstances that neither party had anticipated at the time the judgment was made.

The primary legal issue before the court was whether the consent judgment could be set aside on the grounds that it was no longer just and equitable to enforce due to the intervening changes in circumstances. The court had to determine whether the consent judgment, which was essentially an agreement between the parties, could be altered or set aside when one party later found itself in a position where enforcing the judgment was no longer feasible or fair. This involved assessing the principles of finality and enforceability of judgments in the context of consent agreements.

The court examined the nature of consent judgments and their enforceability, considering that such judgments are typically binding and final unless there are exceptional circumstances that render them inequitable. The court held that while consent judgments are generally final and binding, they can be set aside if it can be demonstrated that there have been significant changes in circumstances since the judgment was entered, and that enforcing the judgment would now be unjust. The court found that the changed circumstances in this case did warrant setting aside the judgment, as enforcing it would result in significant injustice. Consequently, the consent judgment was set aside.

The court ordered that the consent judgment be set aside, thereby relieving both parties from the obligations it imposed. This decision was made on the basis that enforcing the consent judgment would now be inequitable due to the new circumstances that arose post-judgment.

Orders