Leybourne v Habkouk [2012] NSWCA 212

Leybourne v Habkouk [2012] NSWCA 212

Leave to appeal should be granted because there is a substantial body of authority supporting the position that a permanent stay order based on res judicata or the abuse of process principle is a final order, thereby allowing a right of appeal. However, due to potential dicta in Re Luck and to ensure proper procedural approach, leave is granted to allow the appellate court to address whether leave was required and to clarify the legal position.

Parties
Applicant: Brett Leybourne; First Respondent: Joseph Lewis Habkouk; Second Respondent: Jacisa Pty Ltd t/as Megaw Hogg Property Valuations NSW; Third Respondent: Gregory Wickham
Jurisdiction
Australia
Judgment Date
18 July 2012
Procedural Posture
Appeal / Leave to Appeal; Interim Procedural Determination
Outcome
leave to appeal granted
Legal Topics
Abuse of Process, Final Vs Interlocutory Orders, Permanent Stay of Proceedings, Setting Aside Consent Judgment
Civil Procedure Abuse of Process Final Vs Interlocutory Orders Permanent Stay of Proceedings Setting Aside Consent Judgment

Case Brief

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Parties

Brett Leybourne

Applicant

Joseph Lewis Habkouk

First Respondent

Jacisa Pty Ltd t/as Megaw Hogg Property Valuations NSW

Second Respondent

Gregory Wickham

Third Respondent

Procedural Posture

Appeal / Leave to Appeal; Interim Procedural Determination

Legal Issues

  1. 1 Whether leave to appeal was required from an order permanently staying proceedings
  2. 2 Whether a permanent stay order is final or interlocutory
  3. 3 Whether the primary judge erred in dismissing the application to set aside a consent judgment

Ratio Decidendi

Leave to appeal should be granted because there is a substantial body of authority supporting the position that a permanent stay order based on res judicata or the abuse of process principle is a final order, thereby allowing a right of appeal. However, due to potential dicta in Re Luck and to ensure proper procedural approach, leave is granted to allow the appellate court to address whether leave was required and to clarify the legal position.

Court Disposition

leave to appeal granted

Orders

  • Grant leave to appeal.
  • Applicant to file and serve the notice of appeal confined to grounds two to four in the draft notice of appeal in the White Book within 14 days of this judgment.