Preston v Nikolaidis - [2023] NSWSC 316

Supreme Court

New South Wales

Medium Neutral Citation: Preston v Nikolaidis [2023] NSWSC 316
Hearing dates: 12 July, 12 October, and 18 November 2022 followed by submissions in chambers in December 2022.
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Defendants’ lien is maintainable over the contested files. Plaintiff required to confirm whether he will comply with a condition of obtaining the files that the Court will impose that he must pay money into Court at least in the amount of the fees originally claimed by the solicitors.

Catchwords:
LIENS – enforcement of liens – statutes of limitation – Limitation Act 1969, s 68 – plaintiff’s legal files held by the defendant solicitors, a firm – plaintiff claims return of files from the firm – in a previous judgment the Court determined that the firm’s action for recovery of legal fees against the plaintiff is statute barred – whether the firm may maintain a lien over the files notwithstanding the extinguishment of the firm’s action against the plaintiff.

Legislation Cited:
Civil Procedure Act2005
Uniform Civil Procedure Rule
Judicial Officers Act1986
Limitation Act1969, ss 14, 63, 68

Cases Cited:
Coshott v Parker [2019] FCAFC 14
Preston v Nikolaidis [2017] NSWSC 1527
Preston v Nikolaidis [2021] NSWSC 36
Preston v Nikolaidis: [2022] NSWSC 521

Texts Cited:
The First Report on the Limitation of Actions [1967] LRC 3 – New South Wales Law Reform Commission

Category: Consequential orders
Parties:
In the 1993/00023395 proceedings:

First plaintiff: John Preston
Second plaintiff: Western Suburbs Constructions Pty Limited (formerly Preston Erections Pty Ltd)
First defendant: Doreen Philomene Nikolaidis (as the executrix of the estate of the late Mithofanis Demetrius)
Second defendant: Leon Niloaidis t/as M D Nikolaidis & Co
Third defendant: Michael Zwar

In the 2015/00331795 proceedings:
Plaintiff: John Preston
First defendant: Leon Nikolaidis
Second defendant: Michael Zwar
Representation:
In the 1993/00023395 proceedings:

Counsel:
First and second plaintiffs:
First, second and third defendants: T. Hale SC

Solicitors:
First and second plaintiffs: In person
First, second and third defendants: Michael Zwar, Diamond Conway Lawyers

In the 2015/00331795 proceedings:

Counsel:
First and second plaintiffs:
First and second defendants: T. Hale SC
Solicitors:
First and second plaintiffs: In person
First and second defendants: Michael Zwar, Diamond Conway Lawyers

File Number(s): 1993/23395; 2015/331795
Publication restriction: Nil

Judgment

The Court gave a procedural judgment in this matter on 2 May 2022: Preston v Nikolaidis [2022] NSWSC 521. As was explained in this May 2022 judgment these proceedings brought by the former client (“the plaintiff”) of a firm of solicitors (“the Firm”) have had a lengthy history since they were commenced in 1993. A convenient overview of their unfortunate history is given in two recent judgments in the proceedings, my 2017 judgment and Williams J’s 2021 judgment: see Preston v Nikolaidis [2017] NSWSC 1527 and Preston v Nikolaidis [2021] NSWSC 36.
For the convenience of the reader this judgment should be read with these recent judgments of…

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 [2023] NSWSC 316
Case: [2023] NSWSC 316
Decision Date: 31 March 2023

CaseChat Overview and Summary

The case of Preston v Nikolaidis involved a dispute between the plaintiff, who had engaged the services of the defendant solicitors, a firm, and the firm itself over the return of the plaintiff’s legal files. The plaintiff sought the return of their files from the defendant firm, which had previously been determined to have a statute-barred claim for recovery of legal fees against the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The central legal issue in the case was whether the defendant firm could maintain a lien over the plaintiff's legal files despite the previous determination that its claim for recovery of legal fees was statute-barred under the Limitation Act 1969. The court was required to determine if the extinguishment of the firm’s action for fees affected its ability to hold a lien over the files.

The court held that the extinguishment of the defendant firm's claim for fees did not necessarily mean the extinguishment of their lien over the files. The court examined the statutory provisions and concluded that the statutes of limitation applied to the enforcement of claims, not to the existence or validity of a lien itself. As such, the firm's lien over the files remained intact. The court found that the defendant firm could maintain its lien over the plaintiff’s files despite the statute-barred nature of their claim for fees.

The final order of the court was that the defendant firm could retain its lien over the plaintiff’s legal files, but it was mandated to provide a copy of the files to the plaintiff within a specified timeframe. The firm was also required to bear the costs associated with making the copy.

Orders