Preston v Nikolaidis - [2010] NSWSC 427

CITATION: Preston v Nikolaidis [2010] NSWSC 427

HEARING DATE(S): 30/03/10, 20/04/10

JUDGMENT DATE :
11 May 2010

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: 1. Order pursuant to s 64(1)(b) and s 65(2)(b) of the Civil Procedure Act 2005 that the plaintiff have leave to amend the summons filed on 24 August 1993 by adding Michael John Zwar as a defendant.
2. Order that the plaintiff’s notice of motion filed on 30 March 2010 be dismissed.
3. Order that there be no order as to costs with respect to either the defendants’ notice of motion filed on 2 October 2009 or the plaintiff’s notice of motion filed on 29 March 2010.
4. Direct that the proceedings be listed before Registrar Walton on 24 May 2010 for directions and, if appropriate, for allocation of hearing dates.

CATCHWORDS: PROCEDURE - amendment - plaintiff granted leave to amend by adding as a defendant a person treated throughout as a de facto defendant - plaintiff refused leave to amend by adding claims known for many years but not previously made - proceedings undetermined after sixteen years - need for case management to bring them to trial promptly

LEGISLATION CITED: Civil Procedure Act 2005, ss 56, 57, 58, 64(1)(b), 64(2), 65(2)(b)

CASES CITED: Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Greenwood v Papademetri [2007] NSWCA 221
Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411
Preston v Nikolaidis [2010] NSWSC 131
R v Lawrence [1982] AC 510

PARTIES: John Michael Preston - First Plaintiff
Western Suburbs Constructions Pty Ltd - Second Plaintiff
Leon Nikolaidis and the estate of Mitrofanis D Nikolaidis trading as M D Nikolaidis & Co - Defendants

FILE NUMBER(S): SC 1993/00023395

COUNSEL: Mr R R I Harper SC - Plaintiff
Mr T S Hale SC/Mr J S Tobin - Defendants

SOLICITORS: Davidson Gerathy Lawyers - Plaintiff
McLachlan Chilton - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY 11 MAY 2010

1993/023395 JOHN CLEMENT PRESTON & ANOR v LEON
NIKOLAIDIS & ANOR

JUDGMENT

1 I am dealing with three matters in consequence of my judgment of 2 March 2010 (Preston v Nikolaidis [2010] NSWSC 131), having heard further submissions on both 30 March 2010 and 20 April 2010.

2 The first matter concerns Mr Zwar and the fact that, although he has, over a long period, been treated as a party (and, indeed, has represented himself to be a party), there has never been any formal step taken to make him a party. The plaintiff says that Mr Zwar is – and always has been – a necessary party and that he ought to be joined with retrospective effect at least to July 1994 which is the point at which he was first recognised as a party. The defendants say…

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 Preston v Nikolaidis

Details

AGLC: Preston v Nikolaidis [2010] NSWSC 427
Case: [2010] NSWSC 427
Decision Date: 11 May 2010

CaseChat Overview and Summary

In the case of Preston v Nikolaidis, the plaintiff sought to amend his pleadings to include a person who had been treated throughout the proceedings as a de facto defendant. The plaintiff also sought to add claims that had been known for many years but had not been previously asserted. The case was heard in the Supreme Court of Victoria, which had jurisdiction to hear the matter as it involved substantial questions of law or fact. The plaintiff's application for leave to amend was made after the proceedings had been undetermined for sixteen years, and the court was tasked with determining whether the amendments should be allowed and whether the case should proceed to trial.

The legal issues before the court were whether the plaintiff should be granted leave to add the person as a defendant and whether the plaintiff should be allowed to add claims that had been known for many years but not previously made. The court had to consider the need for case management to bring the proceedings to trial promptly, as well as the principles of justice and fairness in allowing the amendments. The court also had to consider the potential prejudice to the defendants if the amendments were allowed at such a late stage in the proceedings.

The court held that the plaintiff should be granted leave to add the person as a defendant, as it was appropriate to do so in the interests of justice and fairness. However, the court refused the plaintiff's application to add the new claims, as allowing them at such a late stage in the proceedings would cause significant prejudice to the defendants and would not be in the interests of justice. The court emphasised the need for case management to bring the proceedings to trial promptly and to ensure that the parties were not subjected to unnecessary delay or expense. The court also noted that the principles of justice and fairness required that the parties be allowed to prepare their cases and present their evidence in a fair and orderly manner.

The court ordered that the plaintiff be granted leave to amend the pleadings by adding the person as a defendant, but that the plaintiff's application to add the new claims be refused. The court also ordered that the parties should engage in further case management to bring the proceedings to trial promptly, and to ensure that the parties were not subjected to unnecessary delay or expense. The court emphasised the importance of fairness and justice in the administration of the law, and the need to balance the interests of the parties in a fair and reasonable manner.

Orders