Leybourne v Habkouk [2012] NSWCA 212

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Leybourne v Habkouk [2012] NSWCA 212 Hearing dates: 10 July 2012 Decision date: 18 July 2012 Before: McColl JA at [1], Meagher JA at [1] Decision: 1. Grant leave to appeal. 2. 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. 3. Reserve the costs of the application for leave to appeal and the competency notices of motion. 4. Stand the matter into the next call-over before the Registrar of the Court of Appeal with a view to consideration being given to minimising the costs of preparation of appeal books. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - leave to appeal - whether leave to appeal required from permanent stay order - where application to set aside consent judgment dismissed by primary judge - where applicant had commenced further proceedings raising substantially the same claims raised in proceedings the subject of consent judgment - whether permanent stay order final or interlocutory Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Bracks v Smyth-Kirk [2009] NSWCA 401; (2009) 263 ALR 522 Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Frumar v the Owners of Strata Plan 36957 [2010] NSWCA 172 Gerlach v Clifton Bricks Ltd [2002] HCA 22; (2002) 209 CLR 478 Kermani v Westpac Banking Corporation [2012] VSCA 42 Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35 Re Luck [2003] HCA 70; (2003) 78 ALJR 177 Reichel v Magrath (1889) 14 App Cas 665 Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 Category: Procedural and other rulings 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 Representation: Counsel: Applicant in person A C Casselden - first respondent D R Zahra - second and third respondents Solicitors: Applicant in person Finlaysons Solicitors - first respondent DLA Piper - second and third respondents File Number(s): CA 2012/16758; 2012/112495 Publication restriction: Nil Decision under appeal Citation: [2011] NSWSC 1223 Date of Decision: 2011-10-14 00:00:00 Before: Sackar J File Number(s): SC 2010/372339