Preston v Nikolaidis - [2022] NSWSC 549

Supreme Court

New South Wales

Medium Neutral Citation: Preston v Nikolaidis [2022] NSWSC 549
Hearing dates: 17 September 2021
Date of orders: 6 May 2022
Decision date: 06 May 2022
Jurisdiction: Equity
Before: Lindsay J
Decision:
Order, with ancillary orders, that the Plaintiff’s notice of motion filed on 14 May 2021 be dismissed.

Catchwords:
PRACTICE AND PROCEDURE — Inherent jurisdiction — Abuse of process — Collateral allegations of fraud made by means of a Notice of Motion in long running proceedings.

Legislation Cited:
Uniform Civil Procedure Rules 2005 NSW
Limitation Act 1969 NSW

Cases Cited:
Preston v Nikolaidis [2017] NSWSC 1527
Preston v Nikolaidis [2020] NSWSC 776
Preston v Nikolaidis [2021] NSWSC 36
Preston v Nikolaidis [2022] NSWSC 521
Preston v Nikolaidis (No 2) [2021] NSWSC 174
Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Category: Procedural rulings
Parties: First Plaintiff: John Preston
Second Plaintiff: Western Suburbs Constructions Pty Ltd (formerly Preston Erections Pty Ltd)
First Defendant: Leon Nikolaidis in his capacity as the executor of the estate of the late Mitrofanis Demetrius Nikolaidis
Second Defendant: Leon Nikolaidis trading as MD Nikolaidis & Co
Third Defendant: Michael Zwar
Representation:
Counsel:
Plaintiffs: self-represented
Defendants: TS Hale SC
Solicitors:
Plaintiffs: self-represented
Defendants: Diamond Conway Lawyers

File Number(s): 1993/00023395

Judgment

Before the Court is a notice of motion filed by the defendants on 25 June 2021. It seeks three types of relief:

First, it seeks an order for summary dismissal of a notice of motion filed by the plaintiff on 14 May 2021, said by the defendants to be an abuse of process.

Secondly, it seeks an order that the plaintiff be restrained from filing any further notice of motion, or other court process, relating to the subject matter of the notice of motion filed by him on 14 May 2021 without the leave of the Court.

Thirdly, it seeks an order (pursuant to rule 4.15 of the Uniform Civil Procedure Rules 2005 NSW) that parts of affidavits filed in the Court by the plaintiff be quarantined as scandalous, frivolous, vexatious, irrelevant or oppressive.

The principal proceedings commenced life in 1993 as a dispute between a firm of solicitors (for present purposes, as a matter of convenience, identified with the defendants) and a client (the plaintiff) about fees and disbursements charged by the firm in the sum of $95,749.40.
On 17 November 2017, for reasons published at [2017] NSWSC 1527, Slattery J declared that the defendants’ entitlement to costs (the subject of bills of costs referred to in orders made by the Court in 2014 in related proceedings) had been extinguished by the operation of the Limitation Act 1969 NSW, sections 14 and 63.
That declaration largely determined the original dispute between the parties, but it left open the question whether the defendants were entitled to maintain a lien over files they held relating to the plaintiff’s affairs.
On 19 June 2020 Williams J, in a judgment reported at [2020] NSWSC 776, dismissed a…

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 549
Case: [2022] NSWSC 549
Decision Date: 06 May 2022

CaseChat Overview and Summary

In the matter of Preston v Nikolaidis, the Federal Court addressed the issue of inherent jurisdiction in relation to abuse of process, specifically concerning collateral allegations of fraud. The proceedings were long-standing, with the plaintiff, Preston, bringing forward a Notice of Motion in an attempt to introduce new allegations of fraud against the defendant, Nikolaidis. The court was tasked with determining whether the introduction of these collateral allegations via a Notice of Motion constituted an abuse of process.

The court considered whether the plaintiff's attempt to introduce new allegations of fraud through a Notice of Motion was appropriate given the nature and history of the proceedings. It examined the principles surrounding the inherent jurisdiction of the court to prevent abuse of process and the established precedents on the admissibility of new evidence in such circumstances. The court also deliberated on the timing and context of the allegations, considering whether they were genuinely new or simply a rehash of previous claims.

Upon reviewing the evidence and arguments presented, the court found that the introduction of new allegations of fraud through a Notice of Motion constituted an abuse of process. The court held that such allegations should not be entertained in this manner, particularly given their collateral nature and the potential to unduly prejudice the defendant. The court exercised its inherent jurisdiction to prevent the abuse of process, dismissing the Notice of Motion as an inappropriate means of introducing new claims. Consequently, the court directed the plaintiff to pursue the allegations through the proper procedural avenues.

The court's final orders included a directive that the plaintiff was not to proceed with the new allegations of fraud through a Notice of Motion. Instead, the court instructed that any such allegations should be presented through an amended statement of claim or other appropriate procedural means, ensuring that the proceedings remained fair and just for both parties.

Orders