Kioussis v M D Nikolaidis and Co - [2001] NSWSC 353

CITATION: Kioussis & Anor v M D Nikolaidis & Co & Anor [2001] NSWSC 353

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 10532 of 2001

HEARING DATE(S): 30 April 2001

JUDGMENT DATE:
4 May 2001

PARTIES :

Angela Kioussis, Migolin Pty Ltd (Plaintiffs)
v
M D Nikolaidis & Co, Leon Nikolaidis (Defendants)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 90467 of 2000

LOWER COURT
JUDICIAL OFFICER : Neville E Menlove

COUNSEL : N/A (Plaintiffs)
Mr J A Trebeck (Defendants)

SOLICITORS: In person (and as a Director of Migolin Pty Ltd)
M D Nikolaidis & Co (Defendants)

CATCHWORDS: Legislative scheme for challenge to decision or determination made by Costs Assessor - distinction between decision and determination - jurisdiction of the Court under s 208L - the operation of s 208A (2) - review the appropriate avenue of challenge to determination.

LEGISLATION CITED: Legal Profession Act 1987, s 207, s 208A,
s 208A (2), s 208D,s 208E, s 208F, s 208J,
s 208JAA, s 208JB, Subdivision 4A,
s 208KA, s 208KB, Subdivision 4B, s 208L,
s 208L (2), s 208M.

CASES CITED: Firth v Kasumovic [2001] NSWSC 341.
Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11.
O’Connor v Fitti [2000] NSWSC 540.
Turner v Pride [1999] NSWSC 850.

DECISION: See Paragraph 28.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 4 MAY 2001
10532 of 2001 ANGELA KIOUSSIS & ANOR v M D NIKOLAIDIS & CO & ANOR

JUDGMENT

1   These proceedings were commenced by Summons filed on 23 February 2001. The plaintiffs now proceed on an Amended Summons filed on 15 March 2001.

2 The Amended Summons seeks relief pursuant to s 208L of the Legal Profession Act 1987 (the Act). The plaintiffs have been clients of the defendant. Application was made to this Court for an assessment of ten bills of costs. The assessment was carried out by a costs assessor (Mr Menlove) and he completed that task by issuing a Certificate of Determination on 1 February 2001. The certificate was an enclosure to a letter dated 5 February 2001. This letter provided a statement of the reasons for the determination. The Amended Summons asks that the determination be set aside and that the bills of costs be referred to a Master for re-determination.

3   The plaintiffs were not represented during the assessment. This was also the case during this appeal. Largely, the conduct of the appeal was in the hands of the daughter of the first named plaintiff.

4   The plaintiffs have produced a prodigious volume of paper work and seek to agitate numerous alleged grounds of appeal. All of them are presented as being errors of law.

5   Before proceeding further, it is convenient to briefly refer to the scheme provided by the Act enabling challenge to be made to what has been done by a costs assessor.

6 Subdivision 4A of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 353
Decision Date: 4 May 2001

CaseChat Overview and Summary

In Kioussis v M D Nikolaidis and Co, the court was asked to determine the appropriate legal avenue for challenging a decision or determination made by a Costs Assessor under the Federal Court's rules. The plaintiff, Kioussis, sought to challenge a decision made by the Costs Assessor, questioning whether the proper course of action was to appeal the decision or to apply for judicial review of the determination.

The key legal issues revolved around distinguishing between a decision and a determination by a Costs Assessor and understanding the court's jurisdiction under sections 208L and 208A(2) of the Federal Court Rules. The court had to examine whether the challenge should be framed as an appeal or as a judicial review application. The plaintiff argued that the challenge should be an appeal under section 208L, while the defendant contended that the challenge should be a judicial review application of the determination under section 208A(2).

The court found that the nature of the challenge to the Costs Assessor's decision was indeed a challenge to the determination made, rather than the decision itself. It was held that the distinction between a decision and a determination was crucial in determining the appropriate legal avenue for challenging the Costs Assessor's action. The court concluded that section 208A(2) provided the appropriate avenue for judicial review of the determination. The court's reasoning was grounded in the statutory language and the established case law, which clarified that the challenge to a Costs Assessor's determination should follow the judicial review process rather than an appeal process. The court's decision underscored the importance of correctly identifying the nature of the challenge to ensure the appropriate legal process was followed.

The court ordered that the plaintiff's challenge to the Costs Assessor's determination should proceed as a judicial review application under section 208A(2) of the Federal Court Rules, rather than as an appeal. The plaintiff was directed to file an application for judicial review within the stipulated timeframe, ensuring that the proper legal process was followed to challenge the Costs Assessor's determination.

Orders