Nikolaidis v Chippindall (No 1) - [2012] NSWDC 171

District Court

New South Wales

Medium Neutral Citation: Nikolaidis v Chippindall (No 1) [2012] NSWDC 171
Hearing dates: 29 May 2012
Decision date: 29 May 2012
Before: Neilson DCJ
Decision:
This Court may continue to hear the current plaintiff's appeal

Catchwords: COSTS ASSESSMENT APPEAL - Preliminary issue - Question as to whether Court has jurisdiction to hear the appeal - Appeal concerning five assessments of costs - Plaintiff, a solicitor, retained the defendant, a barrister, to appear for him in five matters between 1993 and 2005 - Each retainer commenced was properly governed by the Legal Profession Act 1987 subject to the transitional provisions of the 2004 Act - Defendant caused application for costs assessment in each of the five matters - Plaintiff requested review of costs assessor's decision by Review Panel - Only four were considered by the Review Panel, each of which upheld determination of costs assessor
Legislation Cited: Courts and Crimes Legislation Amendment Act 2008 Sch 14
Legal Profession Act 1987 ss 208L, 208M
Legal Profession Act 2004 ss 384, 385, 387 Sch 9 Pt 2
Cases Cited: Levy v Bergseng [2008] NSWSC 294
Category: Procedural and other rulings
Parties: Leon Nikolaidis (Plaintiff)
John Chippindall (Defendant)
Representation: Mr J Svehla (Plaintiff)
N/A (Defendant)

File Number(s): 2012/13604

Judgment

HIS HONOUR: This is an appeal pursuant to s 384 and, in the alternative, s 385 of the Legal Profession Act 2004. The matter proceeds ex parte as the defendant, Mr John Chippindall, a barrister, has filed a submitting appearance. Learned counsel for the plaintiff raised at the commencement of the hearing a question as to this Court's jurisdiction. It is convenient that I dispose of that issue at the current time. The matter was sent to me with an estimate of a day or less and I only commenced the matter after the morning tea adjournment, but I have a special fixture for tomorrow, which is part heard, and is due to run for three days. In other words, my time is circumscribed and it is best that I deal with the preliminary issue and that the determination of the substantive matter, if the Court have a jurisdiction to entertain it, be reserved for a further occasion.

The appeal concerns five assessments of costs. At the relevant time Mr Nikolaidis was a solicitor. At all material times Mr Nikolaidis retained Mr Chippindall to appear for him. The first matter can be conveniently described as Nikolaidis ats Preston, in which a conference was held, being the first item Mr Chippindall's fee note, on 20 September 1993. The second matter can be described as Liberty Holdings Pty Limited ats Goodacre Developments Pty Limited, in which the first item of work done by Mr Chippindall was providing an advice on 14 July 1995. The third set of proceedings can be conveniently described as Nikolaidis ats Legal Services Commissioner, being proceedings in the Administrative Decisions Tribunal. The first item in Mr Chippindall's fee note was a conference held on 29…

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 Nikolaidis v Chippindall (No 1)

Details

AGLC: Nikolaidis v Chippindall (No 1) [2012] NSWDC 171
Case: [2012] NSWDC 171
Decision Date: 29 May 2012

CaseChat Overview and Summary

Nikolaidis v Chippindall (No 1) involved a dispute between a solicitor, the plaintiff, and a barrister, the defendant. The plaintiff had engaged the defendant to represent him in five separate matters between 1993 and 2005. Following the conclusion of these matters, the defendant applied for costs assessments in each case. The plaintiff subsequently sought a review of the costs assessments by a Review Panel, but only four of the five assessments were considered by the panel, which upheld the original decisions. The plaintiff then appealed against these decisions.

The primary legal issue before the court was whether it had jurisdiction to hear the appeal. This preliminary question arose because the plaintiff's costs assessment appeal related to matters governed by the transitional provisions of the Legal Profession Act 2004, and the court needed to determine if it had the authority to hear such appeals. The court had to consider whether the transitional provisions of the 2004 Act affected its jurisdiction to hear the appeal and whether the appeal was properly brought before the court.

The court found that it had jurisdiction to hear the appeal. It reasoned that the transitional provisions of the 2004 Act did not limit the court's authority to hear appeals concerning costs assessments made under the 1987 Act. The court determined that the appeal was properly brought and that it could proceed to consider the merits of the appeal. Consequently, the court found in favour of the plaintiff and allowed the appeal to continue.

The court made an order that it may continue to hear the plaintiff's appeal against the costs assessments. This decision allowed the appeal to proceed on its merits, potentially impacting the costs awarded to the defendant in the underlying matters.

Orders

Orders of the court

This Court may continue to hear the current plaintiff's appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Nikolaidis v Chippindall (No 1) [2012] NSWDC 171
Hearing dates:	29 May 2012
Decision date:	29 May 2012
Before:	Neilson DCJ
Decision:	This Court may continue to hear the current plaintiff's appeal
Catchwords:	COSTS ASSESSMENT APPEAL - Preliminary issue - Question as to whether Court has jurisdiction to hear the appeal - Appeal concerning five assessments of costs - Plaintiff, a solicitor, retained the defendant, a barrister, to appear for him in five matters between 1993 and 2005 - Each retainer commenced was properly governed by the Legal Profession Act 1987 subject to the transitional provisions of the 2004 Act - Defendant caused application for costs assessment in each of the five matters - Plaintiff requested review of costs assessor's decision by Review Panel - Only four were considered by the Review Panel, each of which upheld determination of costs assessor
Legislation Cited:	Courts and Crimes Legislation Amendment Act 2008 Sch 14 Legal Profession Act 1987 ss 208L, 208M Legal Profession Act 2004 ss 384, 385, 387 Sch 9 Pt 2
Cases Cited:	Levy v Bergseng [2008] NSWSC 294
Category:	Procedural and other rulings
Parties:	Leon Nikolaidis (Plaintiff) John Chippindall (Defendant)
Representation:	Mr J Svehla (Plaintiff) N/A (Defendant)
File Number(s):	2012/13604