Brezniak v Habib (No 2) [2015] NSWSC 204

Brezniak v Habib (No 2) [2015] NSWSC 204

Mr Habib's pursuit of the notice to produce and the motion concerning the assessor's certificate was an abuse of process and relevant misconduct because the merits of the costs dispute were not in issue, the documents sought were irrelevant to the motions, the assessor's certificate was enforceable unless set aside,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 March 2015
Procedural Posture
Common Law; Costs and Procedure / Costs, Corrections, and Final Orders on Two Motions to Set Aside Judgments Entered After Registration of Costs Certificates
Outcome
The motion in matter number 2013/314464 was dismissed; the judgment entered in matter number 2014/316920 was set aside; indemnity costs were ordered against Mr Habib for the notice to produce and the 2013/314464 motion; costs were ordered against Mr Brezniak for the 2014/316920 motion.
Legal Topics
['motions to Set Aside Judgments' 'registration and Enforcement of Costs Certificates' 'indemnity Costs' 'gross Costs Orders' 'corrections to Judgment' 'abuse of Process' 'notice to Produce']
['civil Procedure' 'costs'] ['motions to Set Aside Judgments' 'registration and Enforcement of Costs Certificates' 'indemnity Costs' 'gross Costs Orders' 'corrections to Judgment' 'abuse of Process' 'notice to Produce']

Source-derived case record

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Procedural Posture

Common Law; Costs and Procedure / Costs, Corrections, and Final Orders on Two Motions to Set Aside Judgments Entered After Registration of Costs Certificates

Legal Issues

  1. 1 ['Whether corrections should be made to the December judgment.' "Whether Mr Habib should pay Mr Brezniak's costs of the notice to produce on an indemnity basis." "Whether Mr Habib should pay Mr Brezniak's costs of the motion in matter number 2013/314464 on an indemnity basis." "Whether Mr Brezniak should pay Mr Habib's costs of the motion in matter number 2014/316920." 'Whether a gross costs order in the sum of $10,828.13 should be made.']

Ratio Decidendi

Mr Habib's pursuit of the notice to produce and the motion concerning the assessor's certificate was an abuse of process and relevant misconduct because the merits of the costs dispute were not in issue, the documents sought were irrelevant to the motions, the assessor's certificate was enforceable unless set aside, and the appeal to the District Court did not suspend or stay it; indemnity costs were therefore warranted for those matters. However, the judgment entered on the review panel's certificate was irregular because the Court could not enter judgment on that certificate, so Mr Habib was entitled to have that judgment set aside and to his usual costs for that motion. A gross costs...

Court Disposition

The motion in matter number 2013/314464 was dismissed; the judgment entered in matter number 2014/316920 was set aside; indemnity costs were ordered against Mr Habib for the notice to produce and the 2013/314464 motion; costs were ordered against Mr Brezniak for the 2014/316920 motion.

Orders

  • ['The motion in matter number 2013/314464 is dismissed.' 'The judgment entered in matter number 2014/316920 is set aside.' "Mr Habib is to bear Mr Brezniak's costs of the notice to produce dealt with at the hearing on 6 November 2014 and the motion in matter number 2013/314464, on an indemnity basis." "Mr Brezniak...