Nikolaidis v Chippindall (No 3)
[2012] NSWDC 173
•03 August 2012
District Court
New South Wales
Medium Neutral Citation: Nikolaidis v Chippindall (No 3) [2012] NSWDC 173 Hearing dates: 15 June 2012 Decision date: 03 August 2012 Before: Neilson DCJ Decision: (1) Pursuant to UCPR 36.16, I set aside the orders made on 30 May 2012.
(2) I grant leave to the plaintiff to file in Court on 30 May 2012 an amended summons.
(3) I grant leave to the plaintiff to appeal the decision of Costs Assessor Fox of 6 December 2010 in the matter of Liberty Holdings Pty Ltd at Goodacre Developments Pty Ltd.
(4) I allow the appeals from the determinations of the Review Panel of 30 November 2011 in each of:
(a) Nikolaidis ats Preston,
(b) Nikolaidis ats Legal Services Commissioner,
(c) Mazri and ors v Perpetual Nominees,
(d) Nikolaidis v Legal Services Commissioner.
(5) I allow the appeals from the determinations of the Cost Assessor Fox of 6 December 2010 in the matter of Liberty Holdings Pty Ltd ats Goodacre Developments Pty Ltd.
(6) I direct that the issue as to the terms of the retainer of the defendant by the plaintiff in respect of each of the five matters that are the subject of the costs assessments that are the subject of these appeals be determined by another Judge of this Court.
(7) I reserve to that Judge the final orders to be made by this Court.
(8) I direct the defendant to serve any evidence to be relied upon by him by 5pm on 17 August 2012.
(9) I direct the plaintiff to serve any evidence in reply by 5pm on 31 August 2012.
(10) I direct the matter be listed before the List Judge on 10 August 2012 at 9.30am to fix a hearing date for one day, after 31 August 2010.
(11) I reserve to the trial judge the question of the costs of the appeal up to and including 30 May 2012.
(13) I order the plaintiff to pay the defendants costs of the motion, notice of which was filed on 8 June 2012.
Catchwords: COSTS ASSESSMENT APPEAL - Defendant seeking to have orders made on 30 May 2012 set aside and orders made in lieu - Issue of whether Court is able to set aside the determination of costs assessors when "question the subject of appeal" has not yet been determined Legislation Cited: Legal Profession Act 1987 ss 208
Legal Profession Act 2004 ss 384, 385
Uniform Civil Procedure Rules 2005 rule 36Cases Cited: Currabubula & Anor v State Bank of NSW [2000] NSWSC 232
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Wentworth v Rogers [2000] NSWCA 145Category: Procedural and other rulings Parties: Leon Nikolaidis (Plaintiff)
John Chippindall (Defendant)Representation: Mr J Svehla (Plaintiff)
Mr M Ashhurst SC (Defendant)
File Number(s): 2012/13608
Judgment
Introduction
This judgment concerns the nature of orders to be made following upon my decision of 30 May 2012 (Judgment No 2). The primary applications were appeals pursuant to either Legal Profession Act 2004 section 384 or 385. The plaintiff was at all material times a solicitor and the defendant a barrister. The plaintiff retained the defendant in five matters which are summarised in [2] of my ruling on 29 May 2012 (Judgment No 1). Each retainer commenced prior to 1 October 2005 and the substance of the costs "arrangements" was properly governed by the Legal Profession Act 1987, subject to the transitional provisions of the 2004 Act. The defendant caused an application for costs assessment in each of the five matters to be sent to a costs assessor. After those costs assessments, the plaintiff requested a review by a Review Panel. Only four of the costs assessments were considered by the Review Panel, which, in each case, upheld the determination of the costs assessor.
By summons filed on 1 January 2012, the plaintiff appealed pursuant to s 384(2) of the 2004 Act against the four decision of the Review Panel and, in essence, pursuant to section 385 against the decision of the costs assessor, which had not been placed before the Review Panel. On 8 February 2012, the defendant filed a submitting appearance. The matters came before me on 29 May 2012 with an estimate of "one day or less". Mr Svehla of counsel, who appears for the plaintiff, advised me that there might be a question as to whether this Court had jurisdiction to hear the appeals I ruled on 29 May 2012 that this Court had jurisdiction to hear the appeals. The substantive hearing was held on the following day when, in essence, I allowed the appeals. The substance of my decision was that, as there was a clear factual dispute between the plaintiff and the defendant in each matter as to the terms of the retainer, which dispute could only be resolved by a judge hearing evidence from each party (a power that neither a costs assessor or a Review Panel has), both the costs assessor and the Review Panel erred in law in assessing the costs in question solely on the case propounded by the defendant. The defendant, having filed a submitting appearance, was not represented on either 29 or 30 May 2012 nor did he make any written submissions.
The orders I made on 30 May 2012 are these:
"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 the determination of the costs assessor.
In the matter I have identified as the second matter, the matter of Liberty Holding Pty Limited ats Goodacre Developments Pty Limited, 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. I disqualify myself from hearing that application because I have previously had the current plaintiff in the witness box in another set of proceedings in which there was a challenge to his credibility and where I rejected such challenge. In those circumstances, Mr Chippindall would be entitled to object to my hearing the current matter which would involve a determination of the relative credibility of Mr Nikolaidis and Mr Chippindall. For the purpose of that hearing, I direct that the matter be mentioned before the list judge."
At the defendant's request, my Associate advised him of those orders electronically. On 8 June 2012, the defendant filed an unconditional appearance and a notice of motion seeking leave to file that appearance and praying that the orders made on 30 May 2012 be set aside pursuant to UCPR 36.16(2)(b) or UCPR 36.16(3A) and that the following orders be made in their stead:
" Orders Sought
1. Grant leave to the defendant to file a Notice of Appearance in these proceedings.
2. The orders made on 30 May 2012 to be set aside pursuant to rule 36.16 (2)(b) or in the alternative r 36.16 (3A) of the Uniform Civil Procedure Rules 2005 and in lieu thereof the following order be made:
1. Grant leave to the plaintiff to file in Court an amended summons.
2. Grant leave to the plaintiff to appeal the decision of the cost assessor in the matter of Liberty Holdings Pty Ltd ats Goodacre Developments Pty Ltd.
3. Allow the Appeal from the determination of the Review Panel in each of the following matters:
(i) Preston
(ii) Mazri
(iii) Legal Services Commission AAT
(iv) Legal Services Commission NSWCA
4. Allow the Appeal from the cost assessor in the matter of Liberty Holdings Pty Ltd ats Goodacre Developments Pty Ltd.
5. Direct that the issue as to the nature of the agreement between the plaintiff and the defendant in respect of all costs assessments the subject of this appeal be tried by a Judge of this Court ("the Agreement Issue").
6. Reserve to the Judge who determines the nature of the Agreement Issue the question of whether the existing cost determinations the subject of this Appeal be set aside.
7. Direct the defendant to file any evidence in respect of the Agreement Issue by 25 June 2012.
8. Direct the Plaintiff to file any evidence in reply by 9 July 2012.
9. List the Agreement Issue for hearing for one day before the List Judge on 27 July 2012.
10. Reserve the question of costs of the Appeal to the Judge hearing the Agreement Issue."
That notice of motion came before me on 15 June 2012 at 9.30am. I was listed to sit in the Court's criminal jurisdiction at 10am and, accordingly, made orders for the submission of written submissions and stood the matter over to 22 June 2012 when, unfortunately, the same listing problem occurred and I gave further directions concerning written submissions. These are now before me the following written submissions:
(a) Mr Ashhurst SC, for the defendant, dated 18 June 2012;
(b) Mr Svehla, for the plaintiff, dated 21 June 2012;
(c) Mr Svehla, "in reply", dated 29 June 2012.
The relevant legislation
Legal Profession Act 2004, section 384(2) provides:
"After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor's decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the questions to the costs assessor and order the costs assessor to re-determine the application."
Section 385(5) provides:
"After deciding the questions the subject of the appeals the District Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor."
The defendant's submissions
The defendant's position is encapsulated in [9] of Mr Ashhurst SC's submission:
"As the "question the subject of the appeal" has not yet been determined then it follows that the Court is not yet in a position to "affirm" or "make such determination" as it considers appropriate. It follows therefore that the Court is not yet in a position to set aside the determinations of cost assessors as those determinations may yet be affirmed by the judge who determines the nature of the agreement between the parties and then the "questions the subject of the appeal"."
The defendant goes on to submit that my decision of 30 May 2012 did not decide the issue raised by the appeals (i.e. the nature of the retainer of the defendant by the plaintiff) but a "preliminary issue" (i.e. what has to be done to allow the Court to decide that issue - in respect of each of the five matters, whose position is correct, the plaintiff's or the defendant's?). Mr Ashcroft has drawn my attention to the reasons of Einstein J in Currabubula and anor v State Bank of NSW [2000] NSWSC 232 at [76] - [82].
The plaintiff's submissions
The plaintiff's submissions are based on the terms of the 1987 Act, rather than the 2004 Act. However, s 208L(2) of the 1987 Act is in the same terms as section 384(2) of the 2004 Act and s 208M(5) of the 1982 Act is in the same terms as section 385(5) of the 2004 Act. Mr Svehla, in his submission of 21 June 2012, pointed out that the Court has three alternatives open to it:
"Once the court has made this decision in respect of the subject matter of section 208L(1) of the 1987 LP Act (this is what "After" means), section 208L(2) of the 1987 LP Act provides the court with three alternatives:
(a) affirm the decision of the costs assessor: "unless it affirms the costs assessor's decision" - section 208L of the 1987 LP Act.
(b) deciding the application: "make a determination in relation to the application as, in its opinion, should have been made by the costs assessor" - section 208L(2)(a) of the 1987 LP Act.
(c) remit the application to the costs assessor on certain terms: "remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application" - section 208L(2)(b) of the 1987 LP Act."
He goes on to say this:
"The court did not, and could not, affirm the relevant decision of the costs assessor, as the court found in its reasons for judgment of 30 May 2012 that the costs assessor's decision as to a matter of law, namely, to proceed with the application for costs assessment without deciding the terms of the costs agreement(s) between the parties and making the "determination" and issuing the certificate in each costs assessment, was contrary to the legislative regime in the 1987 LP Act.
As the court could not affirm this decision of the costs assessor, the court was required to proceed to one of the alternatives in section 208L(2)(a) or (b) of the 1987 LP Act: see paragraph 7(b) and (c) above.
Both of the alternatives in section 208L(2)(a) and (b) of the 1987 LP Act required [there] to be a fresh determination of the application."
In [9] of his submissions of 21 June 2012, Mr Svehla points out that, unless the determinations of the costs assessor and of the Review Panel are set aside, the certificates issued may be used to obtain judgments against the plaintiff which can be enforced.
In his submissions in reply, Mr Svehla referred me to Wentworth v Rogers [2006] NSWCA 145, Consumer Trader and Tenancy Tribunal Act 2001 and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [23] - [24]. I note that this Wentworth v Rogers decision suggests to me that I may have erred in allowing appeals under section 384 / 208L and that I ought to have allowed all the appeals under section 385 / 208M. However, that is of no practical importance at this time.
Resolution
I accept that the Court has three alternatives under section 384 / 208L and two alternatives under section 385 / 208M:
(a) affirmation of the costs assessor's / Review Panel's decision;
(b) making a determination that ought to have been made;
(c) remitter to the costs assessor / Review Panel to make a determination in accordance with this Court's decision (section 384 / 208L only).
Clearly, I have not adopted the first alternative. It is equally clear that I have not adopted the third alternative as neither the costs assessor nor the Review Panel has jurisdiction to do what needs to be done, according to my ruling of 30 May 2012. However, I have not made a determination of the relevant issue (the nature or terms of the retainer of the defendant by the plaintiff). If the Court accept the terms of the retainer propounded by the defendant, then each of the costs assessor and the Review Panel were correct and the appropriate order would be to affirm the original decisions. If the Court accept the terms of the retainer propounded by the plaintiff, then a new determination must be made. I accede therefore to the submission put to me by Mr Ashhurst SC that my decision of 30 May 2012 was a "preliminary" or interim decision which will lead to this Court ultimately making a final order in accordance with one of three alternatives I have listed. This decision is consistent with the reasons of Einstein J in Currabubula and with the reasoning of Basten JA in Wentworth v Rogers [2006] NSWCA 145.
The contention recited in [7] above is of no moment. Any final decision of this Court, either civil or criminal, is valid, operative and enforceable unless set aside or varied on appeal. In civil litigation, a party aggrieved by a decision of this Court can seek a stay of proceedings either in this Court or in the Court of Appeal. Often, there is an agreement inter partes not to seek to enforce a judgment or order until finalisation of the appeal process. Such, I understand, is the position in the current matters.
Other grounds of appeal?
In [12] of his submissions in reply, Mr Svehla said:
"His Honour also noted that Nikolaidis had not yet made any specific objections to the 5 bills of costs and that this would be a step which Nikolaidis would take if the terms of the costs agreements were determined adversely to Nikolaidis."
I noted that, because that is what Mr Svehla told me. The summons filed on 13 January 2012 is based in substance purely on the question of the terms of the retainer of the defendant by the plaintiff. The grounds of appeal numbered 4 and 5 are:
"Mr Fox erred in his determination set out in the Chippindall Section 368 Certificates in circumstances in which he issued certificates under Section 368 without determining the terms of the retainer between Nikolaidis and Chippindall in each matter.
The Panellists erred in failing to set aside the Section 368 Certificates issued by the costs assessor on the basis they were of no legal effect until the terms of the retainer between Nikolaidis and Chippindall were determined."
On 30 May 2012 I granted the plaintiff leave to file an amended summons. That document has 59 pages. The grounds of appeal commence at page 20. However, I read the substance of that document as raising only the same grounds of appeal.
The question arises as to why the plaintiff did not take specific objections to items in the five bills in the first place. I hazard the observation that he may say that he did not do so as he had a "knock out blow", that the cost assessor could not proceed to a determination of the costs unless and until the question of the terms of the retainer was resolved. However, it is a fundamental principle of our litigious process that a party brings forward all his alleged causes of action or claims in one set of proceedings and that the other party puts forward all his defences and set-offs in the same proceedings, even if the causes of action and or defences are alternatives: interest rei publicae ut finis sit litium. To permit the plaintiff now to raise specific objections to items in the bills infringes on this principle. If the plaintiff wants to pursue this course, then he would need leave to file and serve a second amended summons and would need to explain now why he did not do then what he ought to have done.
Orders
I make the following orders:
(1) Pursuant to UCPR 36.16, I set aside the orders made on 30 May 2012.
(2) I grant leave to the plaintiff to file in Court on 30 May 2012 an amended summons.
(3) I grant leave to the plaintiff to appeal the decision of Costs Assessor Fox of 6 December 2010 in the matter of Liberty Holdings Pty Ltd at Goodacre Developments Pty Ltd.
(4) I allow the appeals from the determinations of the Review Panel of 30 November 2011 in each of:
(a) Nikolaidis ats Preston,
(b) Nikolaidis ats Legal Services Commissioner,
(c) Mazri and ors v Perpetual Nominees,
(d) Nikolaidis v Legal Services Commissioner.
(5) I allow the appeals from the determinations of the Cost Assessor Fox of 6 December 2010 in the matter of Liberty Holdings Pty Ltd ats Goodacre Developments Pty Ltd.
(6) I direct that the issue as to the terms of the retainer of the defendant by the plaintiff in respect of each of the five matters that are the subject of the costs assessments that are the subject of these appeals be determined by another Judge of this Court.
(7) I reserve to that Judge the final orders to be made by this Court.
(8) I direct the defendant to serve any evidence to be relied upon by him by 5pm on 17 August 2012.
(9) I direct the plaintiff to serve any evidence in reply by 5pm on 31 August 2012.
(10) I direct the matter be listed before the List Judge on 10 August 2012 at 9.30am to fix a hearing date for one day, after 31 August 2010.
(11) I reserve to the trial judge the question of the costs of the appeal up to and including 30 May 2012.
As the defendant has succeeded on his motion, which has been actively defendant by the plaintiff, the defendant ought have his costs of the motion.
(12) I order the plaintiff to pay the defendants costs of the motion, notice of which was filed on 8 June 2012.
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Decision last updated: 09 October 2012
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