Brezniak v Habib [2014] NSWSC 1730

Brezniak v Habib [2014] NSWSC 1730

The court found that the cost assessment process was properly followed, the certificates issued were valid, binding and not suspended, the court had jurisdiction to enter judgment, and there was no irregularity or illegality in entering judgment. Thus, the application to set aside the judgments could not succeed under Rule 36.15. Payment-related claims had been addressed and rejected in the assessment process, and both parties were bound by those determinations unless properly suspended or set aside on appeal.

Parties
Plaintiff: Daniel Brezniak; Defendant: Mamdouh Habib
Jurisdiction
Australia
Judgment Date
05 December 2014
Procedural Posture
Notice of Motion / Post Judgment Application; Motion to Set Aside Judgment
Outcome
Applications by defendant to set aside judgments dismissed; parties directed to confer and file proposed orders, with mention set for further determination.
Legal Topics
Costs Assessment, Jurisdiction, Enforcement of Judgments, Notice to Produce, Setting Aside Judgments
Civil Procedure Costs Assessment Jurisdiction Enforcement of Judgments Notice to Produce Setting Aside Judgments

Case Brief

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Parties

Daniel Brezniak

Plaintiff

Mamdouh Habib

Defendant

Procedural Posture

Notice of Motion / Post Judgment Application; Motion to Set Aside Judgment

Legal Issues

  1. 1 Whether judgments entered in favour of the plaintiff were entered irregularly and should be set aside
  2. 2 Whether the costs assessor and review panel had power to consider and resolve whether the disputed memoranda had been paid
  3. 3 Whether the court had jurisdiction to enter judgment on the assessor's certificate

Ratio Decidendi

The court found that the cost assessment process was properly followed, the certificates issued were valid, binding and not suspended, the court had jurisdiction to enter judgment, and there was no irregularity or illegality in entering judgment. Thus, the application to set aside the judgments could not succeed under Rule 36.15. Payment-related claims had been addressed and rejected in the assessment process, and both parties were bound by those determinations unless properly suspended or set aside on appeal.

Court Disposition

Applications by defendant to set aside judgments dismissed; parties directed to confer and file proposed orders, with mention set for further determination.

Orders

  • The notice to produce is set aside.
  • Parties to confer and file proposed orders within 14 days.