Preston v Nikolaidis

[2012] NSWCA 198

Court of Appeal

New South Wales

Case Title:

Preston v Nikolaidis

Medium Neutral Citation:

[2012] NSWCA 198

Hearing Date(s):

21 June 2012

Decision Date:

21 June 2012

Jurisdiction:

Before:

Macfarlan JA at [1]; [12]
Meagher JA at [11]

Decision:

The summons for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - summons seeking leave to appeal - appeal against primary judge's findings rather than orders not permissible

COSTS - assessment process - what objections may be raised

Legislation Cited:

Cases Cited:

Doyle v Hall Chadwick [2007] NSWCA 159

Texts Cited:

Category:

Principal judgment

Parties:

John Clement Preston (Applicant)
Leon Nikolaidis (First Respondent)
Doreen Nikolaidis in her capacity as executrix of the estate of the late Mitrofanis Nikolaidis (Second Respondent)
Michael Zwar (Third Respondent)

Representation

- Counsel:

Counsel:
B Zipser (Applicant)
J T Svehla (Respondents)

- Solicitors:

Solicitors:
Livingstone & Company Lawyers (Applicant)
Diamond Conway Lawyers (Respondents)

File number(s):

CA 1993/23395

Decision Under Appeal

- Court / Tribunal:

- Before:

Black J

- Date of Decision:

13 September 2011

- Citation:

John Clement Preston & Anor v Leon Nikolaidis t/as MD Nikolaidis & Co [2011] NSWSC 1074

- Court File Number(s)

SC 93/23395

Publication Restriction:

JUDGMENT

1. MACFARLAN JA: This is an application for leave to appeal against parts of a judgment of Black J of 13 September 2011 ([2011] NSWSC 1074). The proceedings have a history extending back to 1993 which is sufficiently described in his Honour's judgment.

2. The Amended Summons Seeking Leave To Appeal describes as follows the parts of Black J's judgment from which the applicant seeks leave to appeal:

   "a) The order made by Black J on 16 September 2011 to direct the Manager, Costs Assessment to refer to an accredited costs assessor the defendant's bills of costs for assessment ('the Order'); and

   b) The findings in paragraphs 44 and 45 of the decision dated 13 September 2011 in support of the Order".

3. The applicant submits that he is precluded by the primary judge's decision from raising in the assessment process what the applicant describes as his "Fabricated Document Contention" and his "Already Paid Contention". The former does not invoke an assertion that the respondents have fabricated any documents to support their fee claims. The applicant in fact concedes that he has no evidence that that occurred. Rather, it is a submission that the applicant anticipates that he might have to make in the course of the assessment by the Costs Assessor, depending on what documents are relied upon by the respondents to support their fee claims.

4. Similarly the "Already Paid Contention" does not invoke an…