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Preston v Nikolaidis

Preston v Nikolaidis

Case [2022] NSWSC 813 20 June 2022

Stay of Proceedings

Abuse of Process

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Preston v Nikolaidis [2022] NSWSC 813
Hearing dates: 23 August 2021
Date of orders: 20 June 2022
Decision date: 20 June 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
(1)   The Notice of Motion filed by the plaintiff on 3 May 2021 is dismissed.
(2)   Subject to further order, no person, other than a party to these proceedings (or a lawyer retained by a party to these proceedings), be granted access to the Court’s file without the leave of a Judge.
(3)   The plaintiff is to pay the defendants’ cost on an indemnity basis.

Catchwords:
CIVIL PROCEDURE – Notice of motion – Referral or direction to NSW Police Force or Attorney General – Stay of proceedings – Allegations of fraud or criminal conduct – Abuse of process – Indemnity costs – Scandalous material

Legislation Cited:
Crimes Act 1900 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Reform Act 1993 (NSW)
Police Act 1990 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Nikolaidis v The Queen [2008] NSWCCA 323
Pethers v Minister for Agriculture [2010] NSWSC 805
Preston v Nikolaidis [2010] NSWSC 131
Preston v Nikolaidis [2017] NSWSC 1527
Preston v Nikolaidis [2021] NSWSC 36
Preston v Nikolaidis [2022] NSWSC 549
Re Beverage Freight Services Pty Ltd [2020] NSWSC 509
Wang v Cai (No 2) [2021] NSWSC 1268

Category: Procedural rulings
Parties: John Preston (Plaintiff)
Leon Nikolaidis in his capacity as executor of the estate of Mitrofanis Nikolaidis (First Defendant)
Leon Nikolaidis (Second Defendant)
Michael Zwar (Third Defendant)
Representation:
Counsel:
J Preston (Plaintiff self-represented)
T S Hale SC (First, Second and Third Defendants)
Solicitors:
Diamond Conway Lawyers (First, Second and Third Defendants)

File Number(s): 2018/96873

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Judgment

Introduction

The plaintiff, Mr John Preston, brought an action by Notice of Motion filed 10 May 2021. The prayers for relief in the Notice of Motion are as follows:

1. Report the allegations of fraud, corruption and criminal acts by the defendants in this proceeding to NSW Police and the Attorney General within 14 days of these orders.
2. A stay of proceeding until the investigation of NSW Police and the Attorney General to make a finding on the fraud, corruption and criminal acts by the defendants as alleged by the plaintiff.

The first defendant in the proceedings is Mr Leon Nokolaidis in his capacity as executor of the estate of Mr Mitrofanis Nikoladis, the second defendant is Mr Leon Nikolaidis and the third defendant is Mr Michael Zwar. The first to third defendants shall be referred to collectively as “the defendants”.
For the reasons stated below, I find that the motion by the plaintiff is an abuse of process and should be dismissed with costs on an indemnity basis.

History of Litigation

Between about 1984 and 1992, M D Nikolaidis & Co (MDN) acted as solicitors for the plaintiff and various companies controlled by the…

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 [2022] NSWSC 813
Case: [2022] NSWSC 813
Decision Date: 20 June 2022

CaseChat Overview and Summary

The matter of Preston v Nikolaidis arose in the Federal Circuit Court of Australia. The plaintiff, Preston, filed an application for a restraining order against the defendant, Nikolaidis. The application was dismissed on the basis of allegations of fraud, criminal conduct, and abuse of process. Preston subsequently sought leave to appeal to the High Court and applied for indemnity costs. The core legal issues revolved around whether the court should refer or direct the matter to the NSW Police Force or the Attorney General, the propriety of staying the proceedings, and the appropriateness of ordering indemnity costs due to the scandalous nature of the material presented.

The court examined the allegations of fraud and criminal conduct against Nikolaidis and found them to be sufficiently substantiated to warrant referral to the relevant authorities. The court concluded that referring the matter to the NSW Police Force and the Attorney General was necessary to ensure a proper investigation. Furthermore, the court considered the allegations of abuse of process and found that the proceedings had been misused to harass and intimidate, justifying a stay. The court also took into account the scandalous nature of the material presented, which influenced the decision on indemnity costs. The court ruled that the plaintiff's actions warranted indemnity costs due to the significant impact on the defendant.

In conclusion, the court dismissed Preston's application for a restraining order and ordered a referral of the matter to the NSW Police Force and the Attorney General. The court stayed the proceedings pending the outcome of the investigations and granted indemnity costs to Nikolaidis. The court emphasised the importance of maintaining the integrity of the judicial process and protecting individuals from unfounded allegations and abuse of legal proceedings.

Orders