McMillan v AGB Family Settlement and Andrew G Boog t/as Austen Brown Boog Solicitors

In McMillan v AGB Family Settlement and Andrew G Boog t/as Austen Brown Boog Solicitors, the appellant, McMillan, sought leave to appeal against a decision by the Local Court to set aside a judgment enforcing a costs certificate issued under the Legal Profession Uniform Law Application Act 2014. The Local Court had ruled that it had the power to set aside the judgment, contrary to the appellant's contention that the court lacked such power. The primary legal issue before the court was whether the Local Court had the authority to set aside a judgment under Rule 36.15 and Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), and if so, whether the appellant had established a valid basis for the exercise of that power.

The court examined the legal foundation for the entry of the judgment and concluded that the Local Court did not have the power to set aside a judgment entered to enforce a costs certificate. The court found that the onus was on the applicants, McMillan, to demonstrate a valid basis for the Local Court to exercise its power to set aside the judgment. The court held that the applicants had not met this burden of proof, and therefore the Local Court's decision to set aside the judgment was erroneous. The court dismissed the application for leave to appeal, finding that no compelling grounds for an appeal had been established.

Consequently, the appeal was dismissed, and the costs certificate remained enforceable. The court's decision emphasised the importance of establishing a clear legal basis for setting aside a judgment, particularly in cases involving costs certificates. The court underscored that the power to set aside a judgment is not to be exercised lightly, and that the applicants must clearly demonstrate a valid basis for such action. This case serves as a reminder of the stringent requirements that must be met when seeking to challenge a judgment enforcing a costs certificate.