Lawrence v Nikolaidis - [2002] NSWSC 614

CITATION: Lawrence v Nikolaidis [2002] NSWSC 614

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 10090/2002

HEARING DATE(S): 1 July 2002

JUDGMENT DATE: 11 July 2002

PARTIES :

Wayne Lawrence
(Plaintiff)
M D Nikolaidis & Co & Leon Nikolaidis
(Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Costs Assessor & Costs Review Panel

LOWER COURT
FILE NUMBER(S) : 92058/2000

LOWER COURT
JUDICIAL OFFICER : Mr M W Robinson & Members Mr Jeremy Cockle and Mr John L Sharpe

COUNSEL : Mr J K Chippindall
(Defendant)

SOLICITORS:
Mr W Lawrence
(Plaintiff in Person)
M D Nikolaidis & Co
(Defendant)

CATCHWORDS: Review decision of costs review panel and costs assessor

LEGISLATION CITED: The Legal Profession Act 1987 - s 208

CASES CITED: Larsen v Vile [1999] NSWCA 397
Chapman Ltd v Yandell [1999] NSWCA 361
Atlas v Kalyk [2001] NSWCA 10 (12 February 2001)
Guss v Veenhuizen [No 2] (1976 136 CLR 47
Cachia v Hanes (1994) 179 CLR 403
Dobree & Ors v Hoffman (1996) 18 WAr 36
Coulter v Regina (1988) CLR 350
CDJ v VAJ [1998] HCA 67

DECISION: (1) The apeal is dismissed; (2) Leave to appeal is refused; (3) The costs assessor's decision of 22 May 2001 is affirmed; (4) The summons is dimissed; (5) The plaintiff to to pay the defendant's costs as agreed or assessed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 11 JULY 2002

10090/2002 - WAYNE LAWRENCE v M D NIKOLAIDIS
& CO & LEON NIKOLAIDIS
JUDGMENT (Review decision of costs review panel

and costs assessor)

1 MASTER: By amended summons filed 22 March 2002 the plaintiff seeks orders firstly, that the determination of costs assessor Mr M W Robinson in proceedings 92058/2000 made on 22 May 2001 be set aside; secondly, that the decision of the review panel by members Mr Jeremy Cockle and Mr John L Sharpe dated 12 December 2001 be set aside. The plaintiff relied on his four affidavits namely those dated 14 January 2002, 11 March 2002, 20 March 2002 and 30 April 2002. The defendant relied on his affidavit sworn 18 April 2002. As there have been various legal proceedings between the parties, I shall refer to Wayne Lawrence as the plaintiff and Leon Nikolaidis as the defendant.

2 The plaintiff commenced proceedings against the defendant in the Local Court Manly for alleged work done in relation to the building of the defendant’s home at Newport between 1988 and 1992. Initially the defendant filed a defence which was struck out but costs were ordered to be costs in the cause. The defendant filed an amended defence which alleged that the plaintiff never did any building work whatsoever and alternatively pleaded the expiration of the Limitation Act and s 45 of the Builders Licensing Act. On 10 May 1999 after a hearing the Magistrate ordered that the claim be struck out and that there be verdict for the defendant. At the conclusion of the Local Court hearing Mr Hale, Counsel…

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.

Continue reading Lawrence v Nikolaidis

Details

AGLC: Lawrence v Nikolaidis [2002] NSWSC 614
Case: [2002] NSWSC 614
Decision Date: 11 July 2002

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Lawrence, to review the decision of the costs review panel and costs assessor in relation to a previous proceedings between Lawrence and the defendant, Nikolaidis. The dispute originated from a contractual relationship between the parties, and the application was made under the Uniform Civil Procedure Rules, specifically Part 44, which governs costs in civil proceedings.

The primary legal issue before the court was whether the costs review panel and costs assessor had exercised their discretion correctly in determining the costs to be awarded. Lawrence argued that the costs awarded were excessive and not reflective of the nature and complexity of the proceedings. The defendant, Nikolaidis, contended that the costs awarded were reasonable and appropriate given the circumstances of the case.

The court examined the principles governing costs in civil proceedings and the relevant case law. The court held that the costs review panel and costs assessor had not adequately justified the quantum of costs awarded, particularly in light of the fact that the proceedings were relatively straightforward. The court found that the costs awarded were disproportionately high and did not align with the principles of fairness and proportionality in the assessment of costs. As a result, the court allowed the application for review and ordered that the costs be reassessed by a different costs reviewer, taking into account the principles of proportionality and fairness.

The court ordered that the costs previously awarded be set aside and that new costs be assessed by a different costs reviewer, to be determined in accordance with the principles of fairness and proportionality.

Orders