McMillan v AGB Family Settlement & Andrew G Boog t/as Austen Brown Boog Solicitors [2021] NSWSC 1380

McMillan v AGB Family Settlement & Andrew G Boog t/as Austen Brown Boog Solicitors [2021] NSWSC 1380

Although the Local Court had power under r 36.16 or its implied power to set aside a judgment entered to enforce a costs certificate if a proper basis was established, Mr McMillan and Mr Darch bore the onus of establishing such a basis. They did not provide evidence that the amount specified in the judgment had already been paid or that the judgment lacked a legal foundation, and there were no Local Court proceedings or statement of claim to which a defence or cross-claim could respond. The motion was therefore correctly dismissed and the appeal failed.

Jurisdiction
Australia
Judgment Date
27 October 2021
Procedural Posture
Appeal From Local Court Judgment Dismissing an Application to Set Aside a Judgment Entered to Enforce a Costs Certificate / Principal Judgment; Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal dismissed; costs ordered against Mr McMillan and Mr Darch unless the parties approach to be heard within 7 days.
Legal Topics
['leave to Appeal' 'costs Assessment' 'costs Certificate Enforcement' 'setting Aside Judgment' 'uniform Civil Procedure Rules 2005 (nsw) Rr 36.15 and 36.16' 'legal Profession Uniform Law Application Act 2014 (nsw) S 70']
['appeals' 'costs' 'civil Procedure' 'legal Profession'] ['leave to Appeal' 'costs Assessment' 'costs Certificate Enforcement' 'setting Aside Judgment' 'uniform Civil Procedure Rules 2005 (nsw) Rr 36.15 and 36.16' 'legal Profession Uniform Law Application Act 2014 (nsw) S 70']

Case Brief

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Procedural Posture

Appeal From Local Court Judgment Dismissing an Application to Set Aside a Judgment Entered to Enforce a Costs Certificate / Principal Judgment; Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal was necessary and, if necessary, should be granted.' "Whether the Local Court had power under rr 36.15 or 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), or otherwise, to set aside a judgment entered on filing a costs assessor's certificate." 'Whether alleged lack of candour or material non-disclosure by Mr Boog about the ongoing dispute over payment could justify setting aside the judgment.' 'Whether Mr McMillan and Mr Darch established an evidentiary and legal basis for setting aside the judgment and filing a defence and cross-claim.']

Ratio Decidendi

Although the Local Court had power under r 36.16 or its implied power to set aside a judgment entered to enforce a costs certificate if a proper basis was established, Mr McMillan and Mr Darch bore the onus of establishing such a basis. They did not provide evidence that the amount specified in the judgment had already been paid or that the judgment lacked a legal foundation, and there were no Local Court proceedings or statement of claim to which a defence or cross-claim could respond. The motion was therefore correctly dismissed and the appeal failed.

Court Disposition

Leave to appeal granted; appeal dismissed; costs ordered against Mr McMillan and Mr Darch unless the parties approach to be heard within 7 days.

Orders

  • ['Leave to appeal be granted.' 'The appeal be dismissed.' "Unless the parties' approach to be heard within 7 days, Mr McMillan and Mr Darch must bear Mr Boog's costs, as agreed or assessed."]