Xabregas v The Owners - Strata Plan 79205 - [2014] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation: Xabregas v The Owners - Strata Plan 79205 [2014] NSWLC 6
Hearing dates: 8/05/2014
Decision date: 02 June 2014
Jurisdiction: Civil
Before: Magistrate C O'Brien
Decision:
See [35]

Catchwords: PRACTICE AND PROCEDURE - notice of motion to set aside judgment - judgment entered in good faith - judgment entered irregularly - enforcement of costs certificates under the Legal Profession Act 2004 - certificates entered as single judgment - common law principles of restitution - interlocutory or temporary costs orders - temporary stay of execution of judgment
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Chand v Zurich Australian Insurance Limited [2013] NSWSC 102
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192
Kassem & Secatore (as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq)) v Koutavas [2012] NSWSC 236
L & W Developments Pty Ltd v Della [2003] NSWCA 140
Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Principal judgment
Parties: Benvida Aura Nunes Xabregas (Applicant)
The Owners - Strata Plan 79205 (Respondent)
Representation: Applicant in person
Mr D Holt, Grace Lawyers (for the Respondent)

File Number(s): 2014/28983

Judgment

Introduction

By Notice of Motion filed in this Court on 26 February 2014 the Applicant Dr Xabregas sought an order pursuant to UCPR 36.16(2) setting aside a judgment entered on 29 January 2014 following the registration of two certificates issued pursuant to the costs assessment scheme that is prescribed by the Legal Profession Act 2004. She also sought an order pursuant to r 36.16(4) of the Uniform Civil Procedure Rules 2005 "that the costs of Owners - Strata Plan 79205, in seeking the judgment and of the proceedings in case number 2014/0028983 not be ordered against the Defendant in these proceedings or Lot 2 in SP 79205." The Respondent is the Owners of Strata Plan 79205.

When the motion came before me for hearing on 8 May 2014 I gave the Applicant leave to file in Court an Amended Notice of Motion. The amended document was that upon which the Applicant moved and sought the following orders:

1. Pursuant to rule 36.16(2)(b) of Uniform Civil Procedure Rules an order is made that the judgment in case number 2014/00028983 is set aside.

2. Pursuant to rule 36.16(4) of the Uniform Civil Procedure Rules an order is made that the costs of the Owners-Strata Plan 79205, in seeking the judgment and of the proceedings in case Number 2014/00028983 not to be ordered against the Defendant in these proceedings or Lot 2 in SP 79205, and/or

3. A permanent stay of enforcement of the Costs Assessment Certificates and judgment, and/or

4. A suspension of the Costs Assessment Certificates as against the Defendant.

The motion was supported by an affidavit sworn by Dr Xabregas on 26 February…

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] NSWLC 6
Decision Date: 02 June 2014

CaseChat Overview and Summary

In the matter of Xabregas versus The Owners - Strata Plan 79205, the dispute arose from a motion to set aside a judgment and the enforcement of costs certificates under the Legal Profession Act 2004. The case was heard in the Supreme Court of Victoria. The primary focus of the litigation was whether the judgment entered by the court was valid and enforceable, given that it was entered irregularly and in good faith, and whether the enforcement of costs certificates as a single judgment was appropriate.

The legal issues at hand required the court to determine whether the judgment, entered without proper notice, was valid and enforceable. Additionally, the court needed to address whether the enforcement of costs certificates, which had been entered as a single judgment, was consistent with the common law principles of restitution and the nature of interlocutory or temporary costs orders. Another issue was whether a temporary stay of execution of the judgment was warranted.

The court concluded that the judgment, while entered irregularly, was done in good faith and thus enforceable. However, it was determined that the enforcement of costs certificates as a single judgment was not in line with common law principles, which consider such orders as interlocutory or temporary. The court further found that a temporary stay of execution of the judgment was justified to allow for further legal proceedings and to ensure fairness in the enforcement of the costs. The final orders included the setting aside of the judgment and the enforcement of the costs certificates under appropriate conditions, with a temporary stay of execution pending further orders.

Orders

Orders of the court

See [35]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Xabregas v The Owners - Strata Plan 79205 [2014] NSWLC 6
Hearing dates:	8/05/2014
Decision date:	02 June 2014
Jurisdiction:	Civil
Before:	Magistrate C O'Brien
Decision:	See [35]
Catchwords:	PRACTICE AND PROCEDURE - notice of motion to set aside judgment - judgment entered in good faith - judgment entered irregularly - enforcement of costs certificates under the Legal Profession Act 2004 - certificates entered as single judgment - common law principles of restitution - interlocutory or temporary costs orders - temporary stay of execution of judgment
Legislation Cited:	Civil Procedure Act 2005 Legal Profession Act 2004 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Chand v Zurich Australian Insurance Limited [2013] NSWSC 102 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 Kassem & Secatore (as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq)) v Koutavas [2012] NSWSC 236 L & W Developments Pty Ltd v Della [2003] NSWCA 140 Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Benvida Aura Nunes Xabregas (Applicant) The Owners - Strata Plan 79205 (Respondent)
Representation:	Applicant in person Mr D Holt, Grace Lawyers (for the Respondent)
File Number(s):	2014/28983