Brezniak v Habib (No 2) - [2015] NSWSC 204

Supreme Court

New South Wales

Medium Neutral Citation: Brezniak v Habib (No 2) [2015] NSWSC 204
Hearing dates: On the papers
Date of orders: 12 March 2015
Decision date: 12 March 2015
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1.The motion in matter number 2013/314464 is dismissed.
2.The judgment entered in matter number 2014/316920 is set aside.
3.Mr Habib is to bear Mr Brezniak’s costs of the notice to produce dealt with at the hearing on 6 November 2014 and the motion in matter number 2013/314464, on an indemnity basis.
4.Mr Brezniak is to bear Mr Habib’s costs of the motion in matter number 2014/316920, as agreed or assessed.

Catchwords:
PROCEDURE – costs – two motions - gross costs order not appropriate – indemnity costs order made in relation to assessor’s certificate motion – usual costs order in relation to review panel’s certificate motion – indemnity costs order in relation to notice to produce
PROCEDURE – judgments and orders – corrections to judgment
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brezniak v Habib [2014] NSWSC 1730
Category: Costs
Parties: Daniel Brezniak (Plaintiff)
Mamdouh Habib (Defendant)
Representation: Solicitors:
Ms D Searle
Searle & Associates Lawyers (Plaintiff)
Mr Habib, unrepresented (Defendant)

File Number(s): 2013/3144642014/316920
Publication restriction: None

Judgment

On 5 December 2014, I gave judgment on two motions filed by Mr Habib, where he sought orders under Rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) that judgments entered against him in each case be set aside under Rule 36.10, as having been entered irregularly (see Brezniak v Habib [2014] NSWSC 1730).
At the hearing of the motions, a notice to produce was also dealt with. On the motions, I came to the view that the Court had jurisdiction to enter judgment in matter number 2013/314464, on a certificate issued in Mr Brezniak’s favour by a costs assessor, but that it did not have jurisdiction to enter judgment in his favour in matter number 2014/316920, on a certificate issued in his favour by a review panel.
I also concluded that both Mr Habib and Mr Brezniak were bound by those certificates; that Mr Brezniak was entitled to enforce the assessor’s certificate, but not the review panel’s certificate; and that the judgment entered on the assessor’s certificate should not be set aside.
It is now necessary to deal with the question of costs and to make orders disposing of the two motions. For Mr Brezniak it was also suggested that some corrections should be made to the December judgment.

Corrections

There will be no amendment to the title of the proceedings. They each concern a judgment entered on application made by Mr Brezniak, after he took steps to have the certificates registered in this Court. While Mr Habib was the applicant on the motions, it was not he who commenced the proceedings, sought to register the two certificates, or enter judgment.
Paragraphs [15] and [22] of the judgment will be amended to reflect that judgment was “entered” after…

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: [2015] NSWSC 204
Decision Date: 12 March 2015

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Brezniak v Habib (No 2) was heard. The dispute involved a costs application following two motions in the proceedings. The court was required to determine the appropriate costs orders in relation to an assessor's certificate motion, a review panel's certificate motion, and a notice to produce. The applicant sought a gross costs order, while the respondent argued for indemnity costs in relation to the assessor's certificate motion, usual costs for the review panel's certificate motion, and indemnity costs for the notice to produce.

The court considered the applicable principles and precedents regarding costs orders. It examined the nature of the motions and the respective merits of the parties' positions. The court found that a gross costs order was not appropriate, as the motions involved complex issues that did not warrant such an order. Regarding the assessor's certificate motion, the court concluded that the respondent's conduct warranted an indemnity costs order. For the review panel's certificate motion, the court determined that the usual costs order was appropriate. Lastly, the court found that the respondent's conduct in relation to the notice to produce warranted an indemnity costs order.

The court made orders in relation to the costs of the motions. It determined that the respondent was to pay the applicant's costs of the assessor's certificate motion on an indemnity basis, the applicant's costs of the review panel's certificate motion on the usual basis, and the applicant's costs of the notice to produce on an indemnity basis. Additionally, the court ordered that the reasons for judgment be amended to correct a minor error regarding the date of a document. This case highlights the importance of carefully considering the nature of the motions and the conduct of the parties when determining costs orders in litigation.

Orders