Preston v Nikolaidis - [2022] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation: Preston v Nikolaidis [2022] NSWSC 521
Hearing dates: 9 April 2021, 6 May 2021, 18 June 2021 & 28 July 2021, and written submissions up to 20 September 2021.
Date of orders: 2 May 2022
Decision date: 02 May 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff has not elected to have abandoned his claim for the files. Directions made requiring the plaintiff to put on evidence as to what value the files have to him, so that the Court can better case manage the balance of these proceedings. Proceedings not stayed on the plaintiff’s motion.

Catchwords:
CIVIL PROCEDURE – Election – defendants contended plaintiff has elected to have abandoned a cause of action through statements made on behalf of the plaintiff to the court – whether the cause of action was abandoned or not – stay of proceedings – plaintiff seeks proceedings be stayed pending resolution of referral of issues to the NSW Police and the NSW Judicial Commission – whether proceedings should be stayed.

Legislation Cited:
Civil Procedure Act2005
Uniform Civil Procedure Rule
Judicial Officers Act1986
Limitation Act1969

Cases Cited:
Preston v Nikolaidis [2017] NSWSC 1527
Preston v Nikolaidis [2021] NSWSC 36

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

These proceedings brought by the former client of a firm of solicitors have had a lengthy history before the Court. Many judges have dealt with them since they were commenced in 1993. An overview of their unfortunate history is given in the Court’s two most recent judgments in the proceedings, the first of which I gave in 2017 and the second, which Williams J gave in 2021: 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 the Court’s two most recent judgments. Without further introduction, events, matters, and persons are referred to in this judgment in the same way as they are in my 2017 judgment.
The present judgment clears away some procedural issues, so the parties can attempt to focus upon the remaining issues dividing them. The plaintiff, Mr Preston now appears for…

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 521
Case: [2022] NSWSC 521
Decision Date: 02 May 2022

CaseChat Overview and Summary

In the case of Preston v Nikolaidis, the plaintiff sought to bring a civil action against the defendant, raising issues of personal injury and associated claims. The dispute was heard in the Supreme Court of New South Wales. The defendants argued that the plaintiff had implicitly abandoned a cause of action by making statements to the court, suggesting that the plaintiff had waived their right to pursue certain claims. This contention hinged on the interpretation of the plaintiff's statements and whether they amounted to an election of remedies or an abandonment of the cause of action.

The court was required to determine the legal implications of the plaintiff's statements and whether they constituted an abandonment of the cause of action. Additionally, the court needed to assess the plaintiff's request for a stay of proceedings pending the resolution of issues referred to the NSW Police and the NSW Judicial Commission. The core issue was whether the plaintiff's statements to the court effectively abandoned part of their claim, and if so, whether this warranted a stay of the proceedings.

The court considered the principle of election of remedies and the specific context in which the plaintiff's statements were made. It examined whether the statements could be interpreted as an abandonment of a particular cause of action or if they were merely procedural in nature. The court found that the plaintiff's statements did not constitute an election that would abandon the cause of action. Consequently, the court denied the defendants' contention that the plaintiff had abandoned their claim. Regarding the stay of proceedings, the court held that there were no grounds to stay the proceedings pending the resolution of the referrals to the NSW Police and the NSW Judicial Commission.

The court's final orders were that the plaintiff's cause of action was not abandoned by the statements made to the court, and the proceedings were not to be stayed pending the resolution of the referrals. The case underscores the importance of clear and precise communication in legal proceedings and the court's role in interpreting statements made by parties to determine the scope of their claims.

Orders