Brett Leybourne v Joseph Habkouk and Ors [2011] NSWSC 1223

Brett Leybourne v Joseph Habkouk and Ors [2011] NSWSC 1223

The plaintiff’s motions to set aside the consent judgment failed because there was no demonstrated irregularity, illegality, or lack of good faith; plaintiff consented rationally as an experienced solicitor, and evidence did not support lack of capacity. The fresh proceedings against second defendant and proposed joinder of Mr Wickham constituted an abuse of process given the prior consent judgment; pleadings against the first defendant were deficient and embarrassed. Costs to defendants, and permanent stay of proceedings ordered.

Parties
Plaintiff: Brett Leybourne; First Defendant: Joseph L Habkouk; Second Defendant: Jasica Pty Ltd t/as Megaw and Hogg Property Valuations (NSW)
Jurisdiction
Australia
Judgment Date
14 October 2011
Procedural Posture
Equity Division Civil Proceeding / Motions to Set Aside a Consent Judgment, Strike Out, Stay Proceedings
Outcome
Plaintiff's motions dismissed; defendants' motions granted; proceedings permanently stayed.
Legal Topics
Setting Aside Consent Judgment, Abuse of Process, Negligence, Trade Practices, Fair Trading
Civil Procedure Contract Law Tort Law Setting Aside Consent Judgment Abuse of Process Negligence Trade Practices Fair Trading

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 12 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Brett Leybourne

Plaintiff

Joseph L Habkouk

First Defendant

Jasica Pty Ltd t/as Megaw and Hogg Property Valuations (NSW)

Second Defendant

Procedural Posture

Equity Division Civil Proceeding / Motions to Set Aside a Consent Judgment, Strike Out, Stay Proceedings

Legal Issues

  1. 1 Whether the consent judgment should be set aside for irregularity, illegality, or lack of good faith
  2. 2 Whether the plaintiff's alleged impaired mental state in 2009 invalidated the consent judgment
  3. 3 Whether the new proceedings were an abuse of process in light of prior consent judgment

Ratio Decidendi

The plaintiff’s motions to set aside the consent judgment failed because there was no demonstrated irregularity, illegality, or lack of good faith; plaintiff consented rationally as an experienced solicitor, and evidence did not support lack of capacity. The fresh proceedings against second defendant and proposed joinder of Mr Wickham constituted an abuse of process given the prior consent judgment; pleadings against the first defendant were deficient and embarrassed. Costs to defendants, and permanent stay of proceedings ordered.

Court Disposition

Plaintiff's motions dismissed; defendants' motions granted; proceedings permanently stayed.

Orders

  • Both plaintiff's motions dismissed with costs.
  • Plaintiff to pay defendants' costs of the motions.