Hunters Hill Council v Hakim - [2016] NSWSC 1598

Supreme Court

New South Wales

Case Name:	Hunters Hill Council v Hakim
Medium Neutral Citation:	[2016] NSWSC 1598
Hearing Date(s):	13 October 2016
Date of Orders:	15 November 2016
Decision Date:	15 November 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) Declare that pursuant to clause 2.4 of the Deed of Settlement and Release made between the Plaintiff and the Second Defendant the Plaintiff released the Second Defendant from the payment of costs pursuant to the costs order made by the Land and Environment Court in proceedings numbered 40507 of 2008; (2) Stay permanently the judgment entered against the Second Defendant in the present proceedings on 17 August 2016; (3) The Plaintiff be restrained from enforcing the costs orders against the Second Defendant made by the Land and Environment Court in proceedings numbered 40507 of 2008 including enforcing the judgment obtained by registration of the certificate of the Review Panel on 17 August 2016; (4) The Plaintiff should pay the Second Defendant’s costs.
Catchwords:	DEEDS – construction and interpretation of deeds – deed entered into by way of compromise of costs orders – obligation on husband to pay the compromised sum – no payment required to be made by wife – whether wife’s release was conditional on husband’s performance under the deed – whether accord executory or accord and satisfaction with conditions – wife released on execution of the deed COSTS – assessment – registration of certificate – taken to be a judgment of the court – whether assessor can decide dispute concerning costs agreement – whether assessor can decide other disputes JUDGMENTS – setting aside and varying – whether judgment obtained by registration of cost assessment certificate can be set aside or varied – nature of such a judgment - whether r 36.15 UCPR available to set aside such a judgment – whether judgment entered against good faith – effect of deed of release on costs assessment and judgment – inherent power of court - whether judgment should be stayed
Legislation Cited:	Civil Procedure Act 2005 (NSW) Civil Procedure Rules 2005 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Cash v Wells (1830) 109 ER 826 Doyle v Hall Chadwick [2007] NSWCA 159 Evans v Powis (1847) 1 Exch 601;154 ER 255 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Muriniti v Lyons [2000] NSWSC 680 Osborn v McDermott [1998] 3 VR 1 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Shirriff v Nominal Defendant [1999] NSWCA 152
Category:	Procedural and other rulings
Parties:	Hunters Hill Council (Plaintiff) Mick Bechara Hakim (First Defendant) Yvonne Hakim (Second Defendant)
Representation:	Counsel: Mr D K Ratnam (Plaintiff) No appearance (First Defendant) Mr J Murray (Second Defendant) Solicitors:

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.

Keep reading for free

Create a free CaseChat account to read Hunters Hill Council v Hakim and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1598
Decision Date: 15 November 2016

CaseChat Overview and Summary

In Hunters Hill Council v Hakim, the dispute before the court involved the interpretation of a deed executed as a compromise of costs orders. The central issue was whether the wife's release from liability was conditional upon the husband's performance under the deed, and if the agreement was an accord executory or accord and satisfaction with conditions. Additionally, the case examined the jurisdiction of the assessor in deciding disputes concerning the costs agreement and other related matters.

The court determined that the judgment obtained by the registration of a cost assessment certificate could be set aside or varied if the underlying certificate was set aside or varied. The court emphasised that the legislative intention was to allow an appeal to the Supreme Court after a judgment had been obtained under the relevant section, and that there was no difficulty in giving effect to this intention. The court also held that a judgment arising from a certificate pursuant to the 1987 Act was subject to being set aside or varied if the certificate on which it was based was set aside or varied.

The court ruled that the judgment obtained by registration of the cost assessment certificate could be set aside or varied if the certificate was set aside or varied, aligning with the legislative intention. The court's reasoning was based on the understanding that such judgments have a basis other than a decision of the Court and may be set aside or varied if that basis is defeated or varied.

The final orders of the court would depend on the specific findings related to the interpretation of the deed and the jurisdiction of the assessor, which were not detailed in the provided extract. However, the court's approach to setting aside or varying the judgment based on the certificate provided a clear framework for resolving the dispute.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Justice Hodgson (with whom Mason P and Campbell JA agreed) said:[47] Dr. Doyle accepted that, on his submissions, the judgment pursuant to s.208J could qualify as a judgment of the Court in proceedings in a Division, and thus (with leave) be the subject of an appeal to the Court of Appeal under s.101 of the Supreme Court Act 1970. However, the problem with that approach is that there would be no ground on which such an appeal could be upheld, unless the relevant certificate underlying the judgment was set aside; and s.208K of the 1987 Act prevents that happening except pursuant to the appeal procedure provided by the 1987 Act.[48] The 1987 Act discloses a plain legislative intention that there be an appeal to the Supreme Court in a Division against decisions of costs assessors; and in my opinion it was plainly not the intention of the legislature either that the possibility of such an appeal should be wholly lost if a judgment was obtained under s.208J, because the certificate then merges into the judgment and can no longer be set aside; or that there would have to be also an application for leave to appeal to the Court of Appeal pursuant to s.101 of the Supreme Court Act.[49] Accordingly, in my opinion the clear legislative intention is that an appeal to the Supreme Court should be able to proceed after a judgment has been obtained under s.208J. Further, in my opinion, there is no difficulty in giving effect to this legislative intention. It is well recognised that there are judgments that are not based on any decision of the Court of which they are taken to be judgments, but have some other basis; and such judgments may be set aside or varied if that basis is defeated or varied.[50] One example is judgments entered by consent. They are “mere creatures” of the agreement, and may be set aside, without an appeal, on any ground on which the underlying agreement may be set aside: Logwon Pty.Limited v. Warringah Shire Council (1993) 33 NSWLR 13 at 28-30.[51] Another example is judgments arising from the registration of a certificate of judgment from another jurisdiction. If the judgment in that other jurisdiction is set aside or varied, then the judgment arising from registration can similarly be set aside or varied: Remilton v. City Mutual Life Assurance Society Limited (1907) 24 WN(NSW) 177, Bell v. Bell (1954) 73 WN(NSW) 7.[52] A judgment arising from a certificate pursuant to s.208J(3) of the 1987 Act is this kind of judgment; and is liable to be set aside or varied if the certificate on which it is based is set aside or varied: cf. Croker v. Commissioner of Taxation [2005] FCA 127, (2005) 145 FCR 150 at [14]. A further limitation of the effect of such a judgment is considered in Khoury v. Hiar [2006] NSWCA 47.[53] In relation to an appeal to the Supreme Court, there is no need for a provision of the kind contained in s.208KF. The Supreme Court has power to make appropriate orders in relation to its own judgments, and to make orders preventing parties from relying on judgments of other courts.(emphasis added)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.