Preston v Nikolaidis - [2012] NSWCA 56

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…

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 [2012] NSWCA 56
Case: [2012] NSWCA 56
Decision Date: 12 March 2012

CaseChat Overview and Summary

In *Preston v Nikolaidis*, heard by Whealy JA in the Court of Appeal of New South Wales, the applicant sought an interlocutory order for the inspection of documents prior to the hearing of a leave application. The applicant alleged that these documents had been fraudulently created to inflate assessment costs and raised the question of whether the applicant was personally liable for the respondents' bills of costs.

The central legal issue before the court was whether the applicant had established a sufficient basis to warrant the interlocutory order for document inspection. This involved considering the speculative nature of the application and whether the applicant's claim for personal liability for costs justified the extraordinary measure of pre-hearing document discovery.

Whealy JA declined to make the order sought, finding that the application was speculative and that the applicant had not demonstrated a compelling reason for the early inspection of documents. The court reasoned that the applicant had not met the threshold required for such an order, particularly in the context of an interlocutory application preceding a substantive leave hearing.

Consequently, the court ordered the applicant to pay the respondents' costs of the notice of motion and granted liberty to apply on three days' notice.

Orders

Orders of the court

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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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