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

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

The judgment should be set aside as irregular because it aggregated sums from two costs certificates, including an amount payable only to the Manager, Costs Assessment under the Legal Profession Act 2004, and improperly included a registration fee; however, new judgments should be entered for each sum to give effect to the costs assessment, and a temporary stay of execution is granted pending the Supreme Court's decision in related proceedings.

Jurisdiction
Australia
Judgment Date
02 June 2014
Procedural Posture
Notice of Motion (to Set Aside Judgment) / Decision on Interlocutory Application
Outcome
Amended Notice of Motion substantially allowed; judgment set aside and new judgment entered with temporary stay; no order as to costs.
Legal Topics
['setting Aside Judgment' 'restitution' 'enforcement of Costs Certificates' 'stay of Execution']
['civil Procedure' 'strata Title' 'costs'] ['setting Aside Judgment' 'restitution' 'enforcement of Costs Certificates' 'stay of Execution']

Case Brief

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Procedural Posture

Notice of Motion (to Set Aside Judgment) / Decision on Interlocutory Application

Legal Issues

  1. 1 ['Whether judgment entered on costs certificates should be set aside for irregularity or lack of good faith' 'Whether the costs orders were interlocutory and not yet enforceable' 'Whether a stay of enforcement should be granted']

Ratio Decidendi

The judgment should be set aside as irregular because it aggregated sums from two costs certificates, including an amount payable only to the Manager, Costs Assessment under the Legal Profession Act 2004, and improperly included a registration fee; however, new judgments should be entered for each sum to give effect to the costs assessment, and a temporary stay of execution is granted pending the Supreme Court's decision in related proceedings.

Court Disposition

Amended Notice of Motion substantially allowed; judgment set aside and new judgment entered with temporary stay; no order as to costs.

Orders

  • ['Judgment entered 29 January 2014 set aside.' 'Benvinda Aura Nunes Xabregas to pay Owners Strata Plan No 79205 $71,090.12 for costs under s 368 Legal Profession Act 2004 (NSW) as of 17 September 2013.' 'Benvinda Aura Nunes Xabregas to pay Owners Strata Plan No 79205 $3,087.05 reimbursement for costs assessor under...