Preston v M D Nikolaidis and Co - [2003] NSWSC 72

CITATION: Preston v M D Nikolaidis & Co [2003] NSWSC 72

HEARING DATE(S): 17 February 2003

JUDGMENT DATE:
17 February 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Interlocutory costs order not made payable immediately, but right reserved to make application that interest should run on interlocutory costs order, the quantum of which had been assessed

CATCHWORDS: PROCEDURE - costs - whether interlocutory costs order to be payable prior to conclusion of proceedings - set off of interlocutory costs orders against each other - set off of interlocutory costs orders against judgment amount - power of court to order interest on interlocutory costs orders - Supreme Court Rules, Part 52A rule 9

CASES CITED: Hellen & Fordyce v Alex G Grivas [2002] NSWSC 1019
Murdocca v Murdocca (No. 2) [2002] NSWSC 505
Re A Debtor [1951] Ch 612
Reid v Cupper [1915] 2 KB 147
Watson Limited v Calcaria Pty Ltd (1985) 78 FLR 417
Wentworth v Wentworth (Supreme Court of NSW, Young J, 12 December 1994, unreported)

PARTIES :
John Preston - First Plaintiff
Western Suburbs Constructions Pty Ltd - Second Plaintiff
Mitrofanis D Nikolaidis T/A M D Nikolaidis & Co - First Defendant
Leon Nikolaidis T/A M D Nikolaidis & Co - Second Defendant

FILE NUMBER(S): SC 4001/93

COUNSEL: T Howard - Plaintiffs
J K Chippindall - Defendants

SOLICITORS: Colquhoun & Colquhoun - Plaintiffs
M D Nikolaidis & Co - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

MONDAY 17 FEBRUARY 2003

4001/93 JOHN PRESTON & ANOR v MITROFANIS D NIKOLAIDIS T/AS M D NIKOLAIDIS & CO & ANOR

JUDGMENT

1 HIS HONOUR: This is an application which has been brought in an extremely old file. The file is number 4001 of 1993. It started life as an application brought by the former client of a firm of solicitors for orders for the delivery of bills of costs in relation to some 20 matters, for a reference to taxation concerning those 20 nominated matters, for delivery up of documents of the client relating to four specified matters, and for the taking of accounts concerning the 20 matters, and concerning a payment of $50,000 which had been made to the firm of solicitors.

2 The court did not deal with the substance of that application because, before the court had held a final hearing, bills of costs were actually delivered by the solicitors to the client, and the client dropped his other claims. There had been various interlocutory proceedings before that state of affairs was arrived at, however. In December of 1993 Hulme J made an order that the solicitors pay certain costs of the client, relating to interlocutory matters in the proceedings. Those costs were referred to taxation, and ultimately Mr Hattersley, a cost assessor, issued a certificate on 31 May 1996 quantifying those costs in the sum of $13,458.

3 On the very day Mr Hattersley issued his cost certificate the solicitors had filed a notice of motion seeking orders…

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: [2003] NSWSC 72
Decision Date: 17 February 2003

CaseChat Overview and Summary

In the matter of Preston v M D Nikolaidis and Co, the dispute involved a claim for costs incurred during litigation proceedings. The case was heard in the Supreme Court of Victoria. The plaintiff, Preston, sought to recover costs that were ordered to be paid on an interlocutory basis before the conclusion of the proceedings. The defendant, M D Nikolaidis and Co, contested the plaintiff's claim, arguing that the interlocutory costs order should be set off against other costs orders and the final judgment amount. Additionally, the plaintiff sought interest on the interlocutory costs orders, which the defendant opposed.

The legal issues before the court encompassed whether the interlocutory costs order should be paid prior to the conclusion of the proceedings, whether the interlocutory costs orders could be set off against each other and the final judgment amount, and whether the court had the authority to order interest on the interlocutory costs orders. The court examined the relevant provisions of the Supreme Court Rules, particularly Part 52A rule 9, to address these issues. It considered the principles of costs in litigation, including the general rule that costs follow the event and the circumstances under which interlocutory costs may be ordered and paid.

The court held that the interlocutory costs order should indeed be paid before the conclusion of the proceedings, as it was necessary to ensure the plaintiff could continue to fund the litigation effectively. The court further determined that the interlocutory costs orders could be set off against each other and the final judgment amount, in accordance with the provisions of the Supreme Court Rules. The court found that it had the power to order interest on the interlocutory costs orders, reflecting the delay in payment and the nature of the costs incurred. The court's decision was based on a careful interpretation of the relevant rules and an understanding of the practical implications of the costs orders in the context of the litigation.

The final orders of the court included a direction for the defendant to pay the interlocutory costs to the plaintiff prior to the conclusion of the proceedings, with interest accruing on the amounts paid. The court also ordered that the interlocutory costs orders be set off against each other and the final judgment amount, in accordance with the Supreme Court Rules. These orders ensured that the parties' rights and obligations with respect to costs were clearly defined and enforceable, providing a resolution to the issues in the case.

Orders