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

Supreme Court New South Wales

Medium Neutral Citation: Brezniak v Habib (No 2) [2015] NSWSC 204 Hearing dates: On the papers Date of orders: 12 March 2015 Decision date: 12 March 2015 Jurisdiction: Common Law Before: Schmidt J Decision: 1.The motion in matter number 2013/314464 is dismissed. 2.The judgment entered in matter number 2014/316920 is set aside. 3.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. 4.Mr Brezniak is to bear Mr Habib's costs of the motion in matter number 2014/316920, as agreed or assessed. Catchwords: PROCEDURE – costs – two motions - gross costs order not appropriate – indemnity costs order made in relation to assessor's certificate motion – usual costs order in relation to review panel's certificate motion – indemnity costs order in relation to notice to produce

PROCEDURE – judgments and orders – corrections to judgment Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Brezniak v Habib [2014] NSWSC 1730 Category: Costs Parties: Daniel Brezniak (Plaintiff) Mamdouh Habib (Defendant) Representation: Solicitors: Ms D Searle Searle & Associates Lawyers (Plaintiff) Mr Habib, unrepresented (Defendant) File Number(s): 2013/3144642014/316920 Publication restriction: None

Judgment 1. On 5 December 2014, I gave judgment on two motions filed by Mr Habib, where he sought orders under Rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) that judgments entered against him in each case be set aside under Rule 36.10, as having been entered irregularly (see Brezniak v Habib [2014] NSWSC 1730). 2. At the hearing of the motions, a notice to produce was also dealt with. On the motions, I came to the view that the Court had jurisdiction to enter judgment in matter number 2013/314464, on a certificate issued in Mr Brezniak's favour by a costs assessor, but that it did not have jurisdiction to enter judgment in his favour in matter number 2014/316920, on a certificate issued in his favour by a review panel. 3. I also concluded that both Mr Habib and Mr Brezniak were bound by those certificates; that Mr Brezniak was entitled to enforce the assessor's certificate, but not the review panel's certificate; and that the judgment entered on the assessor's certificate should not be set aside. 4. It is now necessary to deal with the question of costs and to make orders disposing of the two motions. For Mr Brezniak it was also suggested that some corrections should be made to the December judgment.