Leybourne v Habkouk

Case [2012] NSWCA 212

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Leybourne v Habkouk [2012] NSWCA 212
Hearing dates:10 July 2012
Decision date: 18 July 2012
Before: McColl JA at [1], Meagher JA at [1]
Decision:

1. Grant leave to appeal.

2. Applicant to file and serve the notice of appeal confined to grounds two to four in the draft notice of appeal in the White Book within 14 days of this judgment.

3. Reserve the costs of the application for leave to appeal and the competency notices of motion.

4. Stand the matter into the next call-over before the Registrar of the Court of Appeal with a view to consideration being given to minimising the costs of preparation of appeal books.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - leave to appeal - whether leave to appeal required from permanent stay order - where application to set aside consent judgment dismissed by primary judge - where applicant had commenced further proceedings raising substantially the same claims raised in proceedings the subject of consent judgment - whether permanent stay order final or interlocutory
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Bracks v Smyth-Kirk [2009] NSWCA 401; (2009) 263 ALR 522
Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Frumar v the Owners of Strata Plan 36957 [2010] NSWCA 172
Gerlach v Clifton Bricks Ltd [2002] HCA 22; (2002) 209 CLR 478
Kermani v Westpac Banking Corporation [2012] VSCA 42
Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198
Category:Procedural and other rulings
Parties: Brett Leybourne - applicant
Joseph Lewis Habkouk - first respondent
Jacisa Pty Ltd t/as Megaw Hogg Property Valuations NSW - second respondent
Gregory Wickham - third respondent
Representation: Counsel:
Applicant in person
A C Casselden - first respondent
D R Zahra - second and third respondents
Solicitors:
Applicant in person
Finlaysons Solicitors - first respondent
DLA Piper - second and third respondents
File Number(s):CA 2012/16758; 2012/112495
Publication restriction:Nil
 Decision under appeal 
Citation:
[2011] NSWSC 1223
Date of Decision:
2011-10-14 00:00:00
Before:
Sackar J
File Number(s):
SC 2010/372339

Judgment

  1. THE COURT: This matter was listed before two judges of the Court to consider a summons filed by the applicant, Brett…

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AGLC
Leybourne v Habkouk [2012] NSWCA 212
Case
[2012] NSWCA 212
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal from an order of the primary judge that permanently stayed proceedings. The applicant had sought to set aside a consent judgment, but this application was dismissed. The applicant had subsequently commenced new proceedings that raised substantially the same claims as those covered by the consent judgment. The central question before the Court of Appeal was whether the permanent stay order was a final or interlocutory order, which in turn determined whether leave to appeal was required.

The Court of Appeal was required to determine whether an appeal from a permanent stay order, granted after an application to set aside a consent judgment was dismissed, required leave. This involved considering the nature of the permanent stay order as either final or interlocutory for the purposes of appeal.

McColl and Meagher JJA granted leave to appeal, finding that the permanent stay order was a final order. The Court directed the applicant to file and serve a notice of appeal confined to specific grounds within 14 days. The costs of the application for leave to appeal and competency notices of motion were reserved. The matter was stood over for further consideration regarding the preparation of appeal books to minimise costs.

Orders

Orders of the court

1. Grant leave to appeal.

2. Applicant to file and serve the notice of appeal confined to grounds two to four in the draft notice of appeal in the White Book within 14 days of this judgment.

3. Reserve the costs of the application for leave to appeal and the competency notices of motion.

4. Stand the matter into the next call-over before the Registrar of the Court of Appeal with a view to consideration being given to minimising the costs of preparation of appeal books.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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