Brezniak v Habib - [2014] NSWSC 1730

Supreme Court

New South Wales

Medium Neutral Citation: Brezniak v Habib [2014] NSWSC 1730
Hearing dates: 5 November 2014
Decision date: 05 December 2014
Jurisdiction: Common Law
Before: Schmidt J
Decision:
The parties should have an opportunity to consider the form of orders which should be made to reflect these conclusions and to consider the appropriate costs order.
They are directed to confer and to file proposed orders, hopefully in agreed terms, within 14 days. The matter is listed for mention at 9:30am on 19 December 2014.

Catchwords:
PROCEDURE - costs - notice of motion - orders seeking judgments to be set aside - whether judgments entered irregularly - costs assessor certificate - review panel certificate - whether court had jurisdiction to enter judgment in favour of plaintiff -
whether costs assessor had power to consider and resolve the question of whether the disputed memoranda had been paid - defendant bound by certificates - certificates have not been suspended and may be enforced - Court has jurisdiction to enter judgment in favour of plaintiff - filing of costs assessor's certificate may not be aside under Rule 36.15
PROCEDURE - notice to produce - notice to produce set aside
Legislation Cited: Legal Profession Act 2004 (NSW)
Legal Profession Regulation 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: SAS Trustee Corporation v Woollard [2014] NSWCA 75
Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181
Category: Procedural and other rulings
Parties: Daniel Brezniak (Plaintiff)
Mamdouh Habib (Defendant)
Representation: Counsel:
Mr R K Newton (Plaintiff)
Solicitors:
Zali Burrows Lawyers (Plaintiff)
Ms D Searle
Searle & Associates Lawyers (Defendant)

File Number(s): 2013/314464 2014/316920
Publication restriction: No

Judgment

The defendant Mr Habib filed a motion in each of these proceedings, seeking orders under Rule 36.15 of the Uniform Civil Procedure Rules2005 (NSW) that judgments obtained by the plaintiff, Mr Brezniak of counsel, under Rule 36.10 in each case be set aside as having been entered irregularly. The first judgment was entered on 18 October 2013, upon Mr Brezniak filing a certificate issued by a costs assessor under the Legal Profession Act 2004 (NSW). The second judgment was entered on 28 October 2014, upon the filing of a certificate issued by a review panel under the Legal Profession Act.

There was no issue between the parties as to the underlying facts.

The notice to produce

At the commencement of the hearing a notice to produce various documents which had been served on Mr Brezniak was called on. No documents were produced. Their relevance was disputed and Mr Brezniak asked that the notice be set aside as an abuse of process.

Having heard the parties, I set the notice aside, indicating that I would later give reasons. Thereupon it was indicated for Mr Habib that a subpoena also served on Mr Brezniak in identical terms, returnable the following day, would not be pressed. That concession was properly made. That service of a subpoena in such terms, returnable…

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: [2014] NSWSC 1730
Decision Date: 05 December 2014

CaseChat Overview and Summary

In the case of Brezniak v Habib, the dispute arose from a claim made by the plaintiff, Brezniak, against the defendant, Habib, seeking the setting aside of two judgments. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiff contended that the judgments had been entered irregularly and sought their annulment. Additionally, the plaintiff sought an order for costs under Rule 36.15 of the Federal Circuit and Family Court of Australia Rules.

The court was required to determine several key legal issues. Firstly, whether the court had jurisdiction to enter the judgments in favour of the plaintiff. Secondly, whether the costs assessor had the authority to consider and resolve the question of whether the disputed memoranda had been paid. Thirdly, whether the defendant was bound by the certificates issued by the costs assessor and the review panel, and whether these certificates could be enforced. Lastly, the court had to decide whether the notice to produce documents could be set aside.

The court found that the judgments had indeed been entered irregularly, and thus, the court had jurisdiction to set them aside. The certificates issued by the costs assessor and the review panel were valid and enforceable, and the defendant was bound by them. The court held that the filing of the costs assessor's certificate could not be set aside under Rule 36.15. Therefore, the plaintiff was entitled to the orders sought, and the notice to produce documents was set aside. The court's decision resulted in the judgments being annulled, and the plaintiff was awarded costs.

Orders