Hamod v State of New South Wales [2004] FCA 1177

Hamod v State of New South Wales [2004] FCA 1177

Mr Hamod's motion failed because the orders of Katz J and the Full Court were perfected orders made in the appellate jurisdiction, and a single judge exercising original jurisdiction had no power, and in any event no proper basis, to set them aside, stay them, set them off against Conti J's costs order, or permit payment by instalments. UBS held a regular entered order after taxation for unpaid costs, no relevant appeal or other legal impediment existed, and O 37 r 7 of the Federal Court Rules permitted issue of a writ for levy of property using the New South Wales Supreme Court procedure.

Jurisdiction
Australia
Judgment Date
08 September 2004
Procedural Posture
Notices of Motion Concerning Costs Orders and Enforcement by Writ for Levy of Property / Determination of the First Applicant's Notice of Motion Filed 19 August 2004 and the Second Respondent's Notice of Motion Filed 26 August 2004
Outcome
The first applicant's notice of motion was dismissed; UBS Australia Limited's notice of motion was granted; costs were ordered against the first applicant; and time for filing and serving any application for leave to appeal from the orders was extended to 21 September 2004.
Legal Topics
['federal Court Rules O 37 R 7' 'federal Court Rules O 62 R 45(3)' 'writ for Levy of Property' 'taxation of Costs' 'appellate Jurisdiction Orders']
['civil Procedure' 'costs' 'enforcement of Judgments'] ['federal Court Rules O 37 R 7' 'federal Court Rules O 62 R 45(3)' 'writ for Levy of Property' 'taxation of Costs' 'appellate Jurisdiction Orders']

Case Brief

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Procedural Posture

Notices of Motion Concerning Costs Orders and Enforcement by Writ for Levy of Property / Determination of the First Applicant's Notice of Motion Filed 19 August 2004 and the Second Respondent's Notice of Motion Filed 26 August 2004

Legal Issues

  1. 1 ['Whether a single judge exercising the original jurisdiction of the Court could set aside, stay, set off against, or alter by instalments orders for costs made in the appellate jurisdiction by Katz J and the Full Court.' 'Whether UBS Australia Limited should have a writ for levy of property issued to enforce the order entered on 9 August 2004 for taxed costs.' 'Whether the ordinary costs orders should be made on the two notices of motion.']

Ratio Decidendi

Mr Hamod's motion failed because the orders of Katz J and the Full Court were perfected orders made in the appellate jurisdiction, and a single judge exercising original jurisdiction had no power, and in any event no proper basis, to set them aside, stay them, set them off against Conti J's costs order, or permit payment by instalments. UBS held a regular entered order after taxation for unpaid costs, no relevant appeal or other legal impediment existed, and O 37 r 7 of the Federal Court Rules permitted issue of a writ for levy of property using the New South Wales Supreme Court procedure.

Court Disposition

The first applicant's notice of motion was dismissed; UBS Australia Limited's notice of motion was granted; costs were ordered against the first applicant; and time for filing and serving any application for leave to appeal from the orders was extended to 21 September 2004.

Orders

  • ['The notice of motion filed by the first applicant on 19 August 2004 be dismissed.' "The first applicant pay the first and second respondents' costs of the first applicant's notice of motion filed 19 August 2004." 'Pursuant to O 37 r 7 of the Federal Court Rules, a writ for levy of property issue in the form...