Preston v Nikolaidis
[2012] NSWCA 56
•12 March 2012
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Preston v Nikolaidis & Ors [2012] NSWCA 56 Hearing dates: 12 March 2012 Decision date: 12 March 2012 Before: Whealy JA Decision: 1.Decline to make the order sought in Notice of Motion filed by the Applicant on 30.01.12.
2.Order the Applicant to pay the Respondents' costs of the Notice of Motion.
3.Grant liberty to apply on three days' notice.
[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: INTERLOCUTORY JUDGMENT - Notice of motion seeking document inspection prior hearing of leave application - allegation that documents were fraudulently created to raise assessment costs - speculative nature of application - whether applicant personally liable for bills of costs. Legislation Cited: Supreme Court Act 1970 (NSW) - s 75 Category: Interlocutory applications Parties: John Clement Preston (Appellant)
Leon Nikolaidis (First Respondent)
Doreen Nikolaidis (Second Respondent)
Michael Zwar (Third Respondent)Representation: Counsel:
B.M. Zipser (Appellant)
J.T. Svehla (Respondents)
Solicitors:
George Anastasi Livingstone & Co (Appellant)
Diamond Conway (Respondents)
File Number(s): 1993/023395 Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- [2011] NSWSC 1074
- Date of Decision:
- 2011-09-16 00:00:00
- Before:
- Black J
- File Number(s):
- 1993/023395
Judgment
Ex tempore: This matter has had a rather unprepossessing history to say the least. The applicant, Mr Preston, has sought leave to appeal from part of a decision adverse to his interests, that decision having been stated in the judgment of Black J on 16 September 2011. Those proceedings, which I shall call the current proceedings, were between the applicant and his former solicitors. Their progeny lay in litigation commenced as long ago as 1993, so far as I can ascertain from my rather hurried reading of the papers. They were proceedings in which the applicant had sought orders against the former solicitors seeking the following relief: firstly, for the delivery of bills of costs in relation to certain matters; secondly, orders that the bills be referred for taxation; thirdly, orders for delivery up of the applicant's documents in relation to some four specified matters, and fourthly, an order for the taking of accounts.
On 9 November 1993, R.S. Hulme J made orders as sought for delivery of bills of costs in taxable form. On 16 December 1993, R.S. Hulme J made orders referring the bills of costs for taxation. On 28 February 1995, after the conclusion of a number of earlier preliminary skirmishes, R.S. Hulme J finally disposed of the proceedings. He made orders for costs. He confirmed orders made previously, and then dismissed the summons. In circumstances unnecessary to detail for the purposes of the present motion, there was a subsequent judgment given by Young J, as he then was, on 25 July 1996. This required the proper officer of the Court to refer the defendant's bill of costs for assessment. There were then a series of motions in which amendments were sought to pleadings all of which, put briefly, appear to have been attempts by the applicant to re-litigate the issue as to whether he was personally liable to pay the costs in the various bills of costs. Such a claim, it was argued, was quite inconsistent with the stance he had taken in the proceedings before R.S. Hulme J and inconsistent in any event with the outcome of those proceedings.
The current proceedings were heard following the striking out by Barrett J in 2010 of two further attempts by the applicant to restate his claim. Once again, these new pleadings endeavoured to set up a case that entities other than the plaintiff had been intended by the terms of the original retainer to be responsible for the payment of the costs. There were other proceedings as well but I do not propose to go through all of them. They included, however, a successful mediation on the issue of fraud in relation to the retainer. In any event, in the proceedings that were ultimately determined by Black J ([2009] NSWSC 1074), his Honour, having heard the matter on 25 and 26 August 2011, published his decision and reasons on 13 September 2011. The judgment is, it seems, a thorough and comprehensive one that outlines in much more detail than I have the rather unfortunate history of this lengthy piece of litigation.
As I see it, Black J was required to determine three matters essentially. First, he had to determine whether the plaintiff was estopped or otherwise bound by res judicata so as to preclude him from now maintaining that he was not the person liable to pay the relevant legal costs. Black J held that the various judgments of R.S. Hulme J, together with his consequential orders, were to be treated as determining all matters which were necessary to be decided in the original contest between the applicant and his former solicitors. Consequently, his Honour determined that the applicant was not entitled to re-agitate the liability issue. Indeed, he went so far as to foreshadow that the claim, on one view of it, might properly be regarded as an abuse of process. Secondly, Black J had to determine whether there were admissions as to liability made by the applicant. His Honour found adversely to the applicant on this issue and refused leave for the admissions to be withdrawn. The third matter for his Honour's determination is the issue that is sought to be raised in the present leave application to this Court. The relevant paragraphs in his Honour's decision were [42] to [45]. I shall set them out as follows:
"42. The Plaintiffs submitted that directions should be made to allow them to prepare and serve further evidence as to the Preston Liability issue. For the reasons set out above, I have concluded that question has already been determined by the Court adversely to Mr Preston and, alternatively, Mr Preston should not be granted leave to withdraw the admission which he necessarily made as to that liability in invoking the Court's jurisdiction under LPA ss 199-200. For this reason, no question as to directions for the filing of further evidence by any party in respect of that question arises.
43. Mr Preston also submits that, rather than the matter being referred to a costs assessor, it should now be referred to a referee under UCPR Pt 20 Div 3. Mr Preston indicates that he wishes to advance several submissions to such a referee.
44. First, Mr Preston wishes to contend that, following the termination of the retainer between the parties in October 1992, the Defendants may have created documents and placed them in the relevant files in order to provide evidence of work claimed to have been done but which was not in fact done. That is not a matter which is presently raised in these proceedings and, indeed, it appears to be a matter which Mr Preston sought to raise in the Further Amended Summons which Barrett J declined leave to file. Since that matter is not presently in issue, I would not refer it to a referee who would have no jurisdiction to determine it. I also do not consider that that matter could properly be raised before a costs assessor, since it is an allegation which would require investigation by curial processes which are not available to a costs assessor: Doyle v Hall Chadwick [2007] NSWCA 159. The consequence is that, in my view, it is not now open to Mr Preston to pursue this matter.
45. Mr Preston contends that he has already paid for work done prior to 1991. I express no view as to whether this is a matter which can be determined by a costs assessor, and it is possible that it is a matter which would instead arise in respect of any enforcement of a judgment arising from the costs assessment. This is not a matter which is presently in issue in these proceedings and there is therefore no basis for it to be referred to a referee. Mr Preston also indicates that he wishes to make a submission that the Defendants must prepare amended Bills of Costs. This matter, if it arises at all, should properly be addressed during the assessment process."
As can be seen from those paragraphs, essentially his Honour took the view that the particular matter raised in paragraph 44 was not a matter which had been raised in the proceedings. It appeared to his Honour that it was the very matter which Mr Preston had earlier sought to raise in his Further Amended Summons which Barrett J had declined permission to file. Consequently, his Honour thought that it was simply not open to the applicant to pursue the particular matter.
The applicant has filed an Amended Summons seeking leave to appeal. In that document, leave to appeal from part of the decision of Black J is sought in relation to:
"(a) the order made by Black J on 16 September 2011 to direct the manager of costs assessment [sic] to refer to an accredited costs assessor the defendant's bill of costs for assessment (the order) and;
(b) the findings in para 44 and 45 of the decision dated 13 September 2011."
The amended draft Notice of Appeal raises the same two matters. In place of the particular finding and orders covered by para 42 of Black J's decision, the applicant seeks the following orders and consequential relief:
"It is open to the appellant to contend that following the termination of the retainer between the parties in October 1992 the respondent may have created documents and placed them in the relevant files in order to provide evidence of work claimed to have been done but which was not in fact done."
Resolution of the applicant's motion
The applicant's notice of motion seeks an order that the respondents, within seven days, make available for uplift and inspection by a document examiner certain original documents claimed in correspondence between the parties' lawyers. In essence, the applicant wants to determine whether there is material that would support his case, and he wants this material (if it exists) before the leave application is heard.
The parties have, in the brief time I have had available today, put written submissions before me and made oral submissions as to the outcome of the motion. My clear view is that the leave application should proceed before this Court on the basis of the situation as it is now, and as it was before the primary judge. In my opinion this Court's decision as to whether to grant leave should not be distracted by what would, in effect, become or could possibly become a trial within a trial: that is, a preliminary dispute as to whether there were or were not documents that were fraudulently and falsely created. That is essentially a factual inquiry. Even if there were, at this point, expert evidence to suggest that documents had been fraudulently created (and there is not), there would almost certainly be conflicting expert evidence to suggest that this was not the case. It is for this reason that I say this Court would be distracted on the leave application by those contrary arguments. In my opinion, while the question as to whether there is any evidence that would support the applicant's case on appeal is presently speculative, that is the position which must necessarily follow from the way the litigation was conducted below. If the Court of Appeal grants leave, this motion may perhaps then be ventilated.
The decision I have reached is essentially that the motion should not take priority over the leave application itself. I am not thereby suggesting that in any event, the motion would necessarily be granted, but what I do say is that it is not appropriate to ask this Court to stay its hand on a leave application while an applicant sets out to discover whether there is any evidence that might support its case. The issue on the appeal has been correctly identified by Mr Zipser in his careful submissions: was Black J right or wrong in paragraph 44; was the applicant precluded from raising the matter because it was not pleaded? The leave application should be determined on that simple issue.
The resolution of that issue, in particular, and the examination of the question of whether there is an arguable case as to that issue does not require evidence from a document examiner. I wish to make it clear that, in coming to this decision, I have not intended to preclude the plaintiff from re-agitating the motion for permission to have a document examiner examine the original documents. I do not mean, however, that it will necessarily be the case that such an application would be granted. There are forceful arguments against granting the motion as well as arguments in favour of granting it. In any event, as I have said, the simple issue on the leave application is likely to be whether there is an arguable case in relation to the conclusions reached by his Honour. The resolution of the leave application does not depend, in my view, on the definitive ability to point to evidence of a particular kind.
There is obviously a difficult issue underlying this application and that is whether any evidence that might be favourable to the applicant's position would be permitted to be adduced on appeal if leave to appeal is granted. There is a lively and complicated debate about the extent to which the applicant has already had the opportunity to examine the material prior to the hearing before Black J. I am simply unable to resolve that issue on the limited factual material which has been hurriedly assembled for the purposes of today's motion. Nor do I think, in any event, that it is appropriate that I do attempt to resolve that issue. If leave to appeal is granted and the appeal proceeds it will be a matter for the Court of Appeal itself to determine whether it is appropriate to allow fresh evidence to form part of the material before the appeal court. It would be necessary, at least at first blush it seems to me, for the applicant to satisfy the "special grounds" test in s 75 of the Supreme Court Act. As I have indicated, whether evidence of fraud exists in any event is at this stage purely speculative.
In the event, my decision is that the relief sought in the Notice of Motion, supported as it is by the affidavit of Mr George Anastasi, should not be granted at this stage. I think the appropriate course to take is to simply say that I decline to make the order in the Notice of Motion.
I think that an order for costs should be made. Costs on the ordinary basis should be paid by the applicant to the respondent in respect of the motion. I grant liberty to apply on three days notice to either party in relation to any re-agitation of the issue involved in the motion.
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Decision last updated: 26 March 2012
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