Preston v Nikolaidis - [2010] NSWSC 131

CITATION: Preston v Nikolaidis [2010] NSWSC 131

HEARING DATE(S): 17/12/09

JUDGMENT DATE :
2 March 2010

JURISDICTION: Equty Division

JUDGMENT OF: Barrett J

DECISION: 1. Order that the statement of claim filed on 19 June 2009 be struck out.
2. Order that the defendants’ claim by notice of motion filed on 2 October 2009 for an order that the proceedings be dismissed be itself dismissed.
3. Direct that each party deliver to my Associate within fourteen days written submissions as to any orders that should be made to give effect to the findings in paragraphs [84] to [91] of the reasons for judgment dated 2 March 2010.
4. Direct that each party deliver to my Associate within fourteen days written submissions as to the costs order or orders that should be made in relation to the notice of motion filed on 2 October 2009.
5. Direct that the proceedings be listed on a day to be fixed by me after receipt of the written submissions for oral argument not exceeding 30 minutes supplementary to those written submissions.
6. Direct that when the matter comes back before me for supplementary oral argument, the parties present an agreed timetable to deal with any remaining interlocutory steps and to make the proceedings ready for trial.

CATCHWORDS: PROCEDURE – miscellaneous procedural matters - application by defendants for summary dismissal – proceedings commenced by clients against solicitors in 1993 – adjudication by judge in 1995 – adjudication by master in 2000 – question whether any claims extant thereafter – held that claims with respect to clients’ liability for solicitors’ costs remain undetermined – decisions by court in 2001 that the issue of the terms of the solicitors’ retainer must be determined by the court – points of claim and points of defence on that issue then filed on several occasions – leave granted in 2002 concerning points of claim taken to include leave to amend – those points of claim plead fraud by solicitor in relation to formation of retainer – fraud alleged to make retainer void or unenforceable - order in 2009 that the proceedings proceed on pleadings – statement of claim filed which pleads the same fraud as a basis for claims for damages and equitable compensation – such statement of claim held to involve amendment – leave to amend neither granted nor sought – statement of claim pleading new causes of action not authorized by 2009 order – statement of claim struck out – proceedings not dismissed - need for case as articulated in 2002 points of claim and points of defence to be brought to trial expeditiously – PROCEDURE – parties – joinder – one of three solicitors practicing in partnership neither named as a defendant in the summons nor joined by any later order – that solicitor said in a judgment of the court to be a defendant, recorded in an order and various court documents as a defendant, represented by other parties to be a defendant and representing himself…

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

AGLC: Preston v Nikolaidis [2010] NSWSC 131
Case: [2010] NSWSC 131
Decision Date: 2 March 2010

CaseChat Overview and Summary

The matter of Preston v Nikolaidis arose from a longstanding dispute between clients and their former solicitors. The clients, Preston, initiated proceedings against the solicitors in 1993. After various adjudications and proceedings, the court determined in 2001 that the terms of the solicitors’ retainer needed to be established. Despite several attempts to amend and refine the claims and defences, the court issued an order in 2009 that the proceedings would proceed based on the pleadings. The clients subsequently filed a statement of claim that included new allegations of fraud by one of the solicitors in relation to the retainer agreement. This statement of claim was held to be an unauthorized amendment as it introduced new causes of action not permitted by the 2009 order. Consequently, the court struck out the statement of claim but did not dismiss the proceedings outright.

The court addressed the legal issues concerning the validity of the retainer agreement, the extent of the clients' liability for the solicitors' costs, and the impact of the alleged fraud on the enforceability of the retainer. The court also had to consider the procedural implications of the unjoined solicitor who was treated as a defendant in various court documents and judgments. The court found that the clients' statement of claim introduced new causes of action not authorized by the prior orders, and as such, the statement was struck out. However, the court emphasized the need to expeditiously bring the case to trial on the basis of the claims and defences as articulated in the 2002 points of claim and points of defence.

The court concluded that the proceedings would continue, but the clients would need to file an amended statement of claim in accordance with the 2009 order. Additionally, the court noted that submissions would be required on the consequences of the findings with respect to the unjoined solicitor who had been treated as a defendant throughout the proceedings.

Orders