McMillan v AGB Family Settlement & Andrew G Boog t/as Austen Brown Boog Solicitors [2021] NSWSC 1380

Supreme Court New South Wales

Medium Neutral Citation: McMillan v AGB Family Settlement & Andrew G Boog t/as Austen Brown Boog Solicitors [2021] NSWSC 1380 Hearing dates: 20 October 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. Leave to appeal be granted. 2. The appeal be dismissed. 3. Unless the parties' approach to be heard within 7 days, Mr McMillan and Mr Darch must bear Mr Boog's costs, as agreed or assessed. Catchwords: APPEALS — Leave to appeal — Whether leave to appeal is necessary and should it be granted COSTS — Appeal from a costs assessment — Application to set aside judgement entered in Local Court to enforce a costs certificate issued under the Legal Profession Uniform Law Application Act 2014 — Whether the Local Court had power to set aside the judgement — Rules 36.15 and 36.16 Uniform Civil Procedure Rules 2005 (NSW) — Legal foundation for the entry of the judgment — Onus on the applicants to establish a basis for the just exercise of the power to set aside a judgment — Appeal dismissed APPEALS — Procedure — Time limits — Application to set aside a judgement after it is entered Legislation Cited: Civil Procedure Act 2005 (NSW) s 56, 58, 135 Legal Profession Uniform Law Application Act 2014 (NSW) ss 69, 70, 73, 83(1), 89 Local Court Act 2007(NSW) s 39(1), 40 Uniform Civil Procedure Rules 2005 (NSW) rr 6.2, 16.2, 36.15, 36.16, Pt 16 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Calandra v Murden [2015] NSWCA 231 Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 Northey v Bega Valley Shire Council [2012] NSWCA 28 Category: Principal judgment Parties: Geoffrey McMillan (First Plaintiff) David Darch (Second Plaintiff) AGB Family Settlement & Andrew G Boog trading as t/as Austen Brown Boog Solicitors (First Defendant) Andries Boog (Second Defendant) Representation: Counsel: P Vogel (Plaintiff) S Foda (Defendant)