Nikolaidis v Chippindall (No 2) - [2012] NSWDC 172

District Court

New South Wales

Medium Neutral Citation: Nikolaidis v Chippindall (No 2) [2012] NSWDC 172
Hearing dates: 30 May 2012
Decision date: 30 May 2012
Before: Neilson DCJ
Decision:
I grant leave to the plaintiff to file in Court an amended summons.
I grant the relief sought by the current plaintiff.
In what I have identified as the first, third, fourth and fifth matters I allow the appeal.
I set aside the determination of the review panel in each of those matters and I also set aside each determination of the costs assessor.
In the matter I have identified as the second matter, Liberty Holding Pty Ltd ats Goodacre Developments Pty Ltd I grant leave to the plaintiff to appeal against the decision of the costs assessor.
I set aside the determination of the costs assessor.
I direct that the issue as to the nature of the agreement between the plaintiff and the defendant be tried by a judge of this Court.
For the purpose of that hearing I direct that matter be heard before the List Judge on Friday 15 June 2012.
I reserve the question of costs to the trial judge. Prima facie the plaintiff is entitled to costs and prima facie the defendant ought have a certificate under the Suitor's Fund Act 1951 if he be qualified to receive such a certificate.
The exhibits are to be returned to the plaintiff with the exception of exhibit 1 which is to remain on file.
I direct the plaintiff to properly care for the exhibits and to produce them at the next hearing in case there be any cross-examination based on any of the documents which are the exhibits in the plaintiff's case before me.

Catchwords: COSTS ASSESSMENT APPEAL - Issue of whether there existed an independent agreement between plaintiff and defendant that the formal costs agreement would only apply if the plaintiff was successful in the matter and recovered a costs order against the other party - Failure of costs assessor to decline to assess costs in accordance with dictum of Hodgson JA in Doyle v Hall Chadwick and send matter back to judicial arm of the Supreme Court for determination by a judge of the factual issue joined between the costs applicant and the costs respondent - Review Panel erred in law in failing to identify this issue and proceeded upon basis that there was no real issue as to whether there were the agreements pounded by the costs applicant
Cases Cited: Doyle v Hall Chadwick [2007] NSWCA 159
Najem v Maatouk [2010] NSWSC 20
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: Yesterday afternoon I made a finding as to the jurisdiction of this Court to determine the five appeals brought in the amended summons against five determinations of costs assessors, four of which had been adopted by a Review Panel. In that ruling, I outlined the nature…

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 2)

Details

AGLC: Nikolaidis v Chippindall (No 2) [2012] NSWDC 172
Case: [2012] NSWDC 172
Decision Date: 30 May 2012

CaseChat Overview and Summary

Nikolaidis v Chippindall (No 2) involved a costs assessment appeal in the Supreme Court of Queensland. The plaintiff, Nikolaidis, sought an amended summons to challenge the costs assessment made by the defendant, Chippindall. The legal issues revolved around whether there existed an independent agreement between the parties that the formal costs agreement would only apply if Nikolaidis was successful and recovered a costs order against Chippindall. The court also had to consider whether the costs assessor failed to decline to assess the costs in line with the dictum of Hodgson JA in Doyle v Hall Chadwick and whether the Review Panel erred in not identifying this issue.

The court found that the costs assessor had not considered the issue of whether there were the agreements relied upon by Nikolaidis. Instead, the assessor proceeded without addressing the factual dispute between the parties. The Review Panel also erred in not identifying this issue and proceeding on the assumption that there was no real issue. The court concluded that the Review Panel's decision was flawed, and it set aside the determinations of the Review Panel and the costs assessor. The court allowed the appeal in four of the five matters and set aside the determinations. In the second matter, Liberty Holding Pty Ltd ats Goodacre Developments Pty Ltd, the court granted Nikolaidis leave to appeal the costs assessor's decision and directed that the issue of the nature of the agreement between the parties be tried by a judge of the court. The court reserved the question of costs for the trial judge and directed that the exhibits be returned to Nikolaidis, except for exhibit 1, which would remain on file.

The court's orders granted Nikolaidis leave to file an amended summons and granted the relief sought by the current plaintiff. The court allowed the appeal in four of the five matters and set aside the determinations of the Review Panel and the costs assessor. In the second matter, the court granted Nikolaidis leave to appeal the costs assessor's decision and directed that the issue of the nature of the agreement between the parties be tried by a judge of the court. The court reserved the question of costs for the trial judge and directed that the exhibits be returned to Nikolaidis, except for exhibit 1, which would remain on file. The court also directed that Nikolaidis properly care for the exhibits and produce them at the next hearing in case there be any cross-examination based on any of the documents which are the exhibits in the plaintiff's case before the court.

Orders

Orders of the court

I grant leave to the plaintiff to file in Court an amended summons.

I grant the relief sought by the current plaintiff.

In what I have identified as the first, third, fourth and fifth matters I allow the appeal.

I set aside the determination of the review panel in each of those matters and I also set aside each determination of the costs assessor.

In the matter I have identified as the second matter, Liberty Holding Pty Ltd ats Goodacre Developments Pty Ltd I grant leave to the plaintiff to appeal against the decision of the costs assessor.

I set aside the determination of the costs assessor.

I direct that the issue as to the nature of the agreement between the plaintiff and the defendant be tried by a judge of this Court.

For the purpose of that hearing I direct that matter be heard before the List Judge on Friday 15 June 2012.

I reserve the question of costs to the trial judge. Prima facie the plaintiff is entitled to costs and prima facie the defendant ought have a certificate under the Suitor's Fund Act 1951 if he be qualified to receive such a certificate.

The exhibits are to be returned to the plaintiff with the exception of exhibit 1 which is to remain on file.

I direct the plaintiff to properly care for the exhibits and to produce them at the next hearing in case there be any cross-examination based on any of the documents which are the exhibits in the plaintiff's case before me.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Nikolaidis v Chippindall (No 2) [2012] NSWDC 172
Hearing dates:	30 May 2012
Decision date:	30 May 2012
Before:	Neilson DCJ
Decision:	I grant leave to the plaintiff to file in Court an amended summons. I grant the relief sought by the current plaintiff. In what I have identified as the first, third, fourth and fifth matters I allow the appeal. I set aside the determination of the review panel in each of those matters and I also set aside each determination of the costs assessor. In the matter I have identified as the second matter, Liberty Holding Pty Ltd ats Goodacre Developments Pty Ltd I grant leave to the plaintiff to appeal against the decision of the costs assessor. I set aside the determination of the costs assessor. I direct that the issue as to the nature of the agreement between the plaintiff and the defendant be tried by a judge of this Court. For the purpose of that hearing I direct that matter be heard before the List Judge on Friday 15 June 2012. I reserve the question of costs to the trial judge. Prima facie the plaintiff is entitled to costs and prima facie the defendant ought have a certificate under the Suitor's Fund Act 1951 if he be qualified to receive such a certificate. The exhibits are to be returned to the plaintiff with the exception of exhibit 1 which is to remain on file. I direct the plaintiff to properly care for the exhibits and to produce them at the next hearing in case there be any cross-examination based on any of the documents which are the exhibits in the plaintiff's case before me.
Catchwords:	COSTS ASSESSMENT APPEAL - Issue of whether there existed an independent agreement between plaintiff and defendant that the formal costs agreement would only apply if the plaintiff was successful in the matter and recovered a costs order against the other party - Failure of costs assessor to decline to assess costs in accordance with dictum of Hodgson JA in Doyle v Hall Chadwick and send matter back to judicial arm of the Supreme Court for determination by a judge of the factual issue joined between the costs applicant and the costs respondent - Review Panel erred in law in failing to identify this issue and proceeded upon basis that there was no real issue as to whether there were the agreements pounded by the costs applicant
Cases Cited:	Doyle v Hall Chadwick [2007] NSWCA 159 Najem v Maatouk [2010] NSWSC 20
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