Preston v Nikolaidis - [2021] NSWSC 36

Supreme Court

New South Wales

Medium Neutral Citation: Preston v Nikolaidis [2021] NSWSC 36
Hearing dates: 18 and 19 June 2020; further submissions received on 8 July 2020 and 28 September 2020
Date of orders: 2 February 2021
Decision date: 02 February 2021
Jurisdiction: Equity - Applications List
Before: Williams J
Decision:
Leave is granted to the plaintiff to rely on four affidavits in support of his application for leave to file a verified statement of claim dated 17 September 2019. However, leave to file that verified statement of claim is refused.

Catchwords:
PRACTICE AND PROCEDURE – application – in proceeding commenced in 1993, order made requiring plaintiff to obtain leave to file statement of claim seeking orders setting aside various costs orders made between 1995 and 2014 – whether the proposed pleading discloses a reasonable cause of action under Uniform Civil Procedure Rules 2005 (NSW), rr 36.15(1) and/or 36.16(3)
JUDGMENTS AND ORDERS – res judicata – cause of action estoppel – issue estoppel – Anshun estoppel
PRACTICE AND PROCEDURE – inherent jurisdiction – abuse of process

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 91 and 98
Crimes Act 1900 (NSW), s 300
Evidence Act 1995 (NSW), ss 136 and 191
Family Law Act 1975 (Cth), s 79
Legal Profession Act 1987 (NSW), s 208
Limitation Act 1969 (NSW), ss 14 and 63
Supreme Court Act 1970 (NSW), ss 38–56
Supreme Court Rules 1970 (NSW), Pt 40 r 8
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15 and 36.16

Cases Cited:
Bajrmovic v Calubaquib [2015] NSWCA 139
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Beck v Weinstock [2012] NSWCA 289
Bhagat v Smith [2000] NSWCA 89
Blair v Curran (1939) 62 CLR 464
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
C G Maloney Pty Ltd v Noon [2011] NSWCA 397
Champerslife Pty Ltd v Manojloviski (2010) 75 NSWLR 245; [2010] NSWCA 33
Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44
Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336
General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125
James v Australia and New Zealand Banking Group Ltd (2020) 380 ALR 566; [2020] NSWCA 101
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Labracon Pty Ltd v Cuturich (2013) 17 BPR 32,497; [2013] NSWSC 97
Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177
Nominal Defendant v Cordin [2017] NSWCA 6
Preston v Nikolaidis [2010] NSWSC 66
Preston v Nikolaidis [2010] NSWSC 131
Preston v Nikolaidis [2010] NSWSC 427
Preston v Nikolaidis [2011] NSWSC 1074
Preston v Nikolaidis [2017] NSWSC 1527
Preston v Nikolaidis, Supreme Court of New South Wales, R S Hulme J, 28 February 1995, unreported
Preston v Nikolaidis, Supreme Court of New South Wales, Young J, 25 July 1996, unreported
Preston v Nikolaidis, Supreme Court of New South Wales, Master McLaughlin, 25 August 2000, unreported
Rogers v The Queen (1994) 181 CLR 251
The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Williams v Spautz (1992) 174 CLR 509

Texts Cited:
K R Handley, Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis Butterworths, 2019)

Category: Procedural rulings
Parties:
In proceeding 1993/23395:
John Preston (First Plaintiff/Applicant)
Western Suburbs Constructions Pty Ltd (formerly Preston Erections Pty Limited) (Second Plaintiff)
Leon Nikolaidis in his capacity as the executor of the estate of the late Mitrofanis Demetrius Nikolaidis (First Defendant/First Respondent)
Leon Nikolaidis trading as M.D. Nikolaidis & Co (Second Defendant/Second Respondent)
Michael Zwar (Third Defendant/Third Respondent)
In proceedings 2015/331795 and 2018/96873:
John Preston (Plaintiff)
Leon Nikolaidis (First Defendant)
Michael Zwar (Second Defendant)
Representation:
In proceeding 1993/23395:

Counsel:
Mr B Zipser (First Plaintiff/Applicant)
Mr T S Hale SC with Mr J Svehla (Defendants/Respondents)

Solicitors:
Livingstone & Company Lawyers (First Plaintiff/Applicant)
Diamond Conway Lawyers (Defendants/Respondents)

In proceedings 2015/331795 and 2018/96873:

Counsel:
Mr B Zipser (Plaintiff/)
Mr T S Hale SC with Mr J Svehla (Defendants)
Solicitors:
Livingstone & Company Lawyers (Plaintiff)
Diamond Conway Lawyers (Defendants)

File Number(s): 1993/23395; 2015/331795; 2018/96873
Publication restriction: N/A

Judgment

Introduction

These reasons for judgment concern a notice of motion filed in proceeding 1993/23395 (the 1993 proceeding) by the plaintiff, Mr John Preston, seeking:

leave to file in the 1993 proceeding a verified statement of claim dated 17 September 2019 (the verified pleading); [1] and
1. Court Book, pages 75–105.

leave to rely on affidavits of Mr Preston and Ms Ivy Zhao that were served after 16 August 2019:

in support of the application for leave to file the verified pleading referred to above; and

if leave is granted to file the verified pleading, in support of the relief claimed in the verified pleading.

The 1993 proceeding is a “squabble between solicitor and client as to costs.” [2] In October 1992, the defendant solicitors sought payment of legal fees totalling $95,749.40 in respect of 20 matters in which they had acted for Mr Preston and various companies controlled by him. Mr Preston disputed that the fees were owing. He and one of those companies commenced the 1993 proceeding seeking orders requiring the defendant solicitors to deliver bills of costs and referring those bills for taxation, orders requiring the solicitors to deliver up the certain files and orders for the taking of an account of certain payments made to the solicitors.
2. Preston v Nikolaidis, Supreme Court of New South Wales, Young J, 25 July 1996, unreported, page 1.
The defendant solicitors delivered itemised bills of costs in 16 of the 20 matters pursuant to orders made by the Court in late 1993 and the Court made orders referring those bills for taxation and, subsequently, assessment. At an early stage of the 1993 proceeding, the plaintiff elected not to pursue a reference that had been ordered by the Court for the taking of the account after he and his representatives had inspected the defendant solicitors’ records. The taxation and assessment of the bills in the 16 matters were never completed and, in November 2017, the Court determined that the defendants’ entitlement to the costs the subject of those bills had been extinguished by ss 14 and 63 of the Limitation Act 1969 (NSW).
The verified pleading that is the subject of the plaintiff’s notice of motion filed on 25 October 2019 (the Motion) claims orders under r 36.15(1) and/or r 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) setting aside:

ten costs orders made in the 1993 proceeding during the period from 28 February 1995 to 13 February 2014 (referred to in the verified pleading as the Adverse Costs Orders); and

two costs orders made by the Court of Appeal on 12 March 2012 and 21 June 2012 in an application by the plaintiffs in the 1993 proceeding for leave to appeal from a judgment delivered by Black J on 13 September 2011 and orders made by his Honour on 16 September 2011 to give effect to that judgment (referred to in the verified pleading as the Appeal Adverse Costs Orders).

For the reasons that follow, I have determined that it is appropriate in all the circumstances to grant leave to Mr Preston to rely on the affidavits served after 16 August 2019 in support of the application for leave to file the verified pleading, but that leave should not be granted to Mr Preston to file the verified pleading because:

the plaintiff is precluded by the doctrine of Anshun estoppel from making his claim under UCPR r 36.15(1) and the first basis of his claim under r 36.16(3) to set aside the Adverse Costs Orders and the Appeal Adverse Costs Orders;

further, the verified pleading is an abuse of process; and

further, the plaintiff’s claims under UCPR rr 36.15(1) and 36.16(3), as pleaded in the verified pleading, are so obviously untenable that they cannot possibly succeed.

The relationship between the parties and the events leading to the commencement of the 1993 proceeding

In the verified pleading that is the subject of the Motion, Mr John Preston is the plaintiff and Mr Leon Nikolaidis (both in his personal capacity, and in his capacity as executor of the estate of the late Mr Mitrofanis Nikolaidis) and Mr Michael Zwar are the defendants.
Between about 1984 and 1992, M D Nikolaidis & Co (MDN) acted as solicitors for Mr Preston and various companies controlled by him in a number of matters. It is convenient to refer to Mr Preston and the companies he controlled, collectively, as the Preston entities. Mr Leon Nikolaidis, a partner of MDN, acted as principal point of contact between MDN and the Preston entities. [3]
3. Exhibit 7, paragraphs 1–2 (Court Book, page 1452).
The Preston entities terminated MDN’s retainer in early October 1992. [4] It is not in dispute that Mr Preston requested the return of all of MDN’s files relating to the Preston entities on several occasions at about this time.
4. Exhibit 7, paragraph 3 (Court Book, page 1452).
After termination of the retainer, MDN sent Mr Preston a summary of accounts stating that the sum of $95,749.40 was owing for legal services provided by MDN. The amount said to be owing had been the subject of 22 bills issued by MDN to the Preston entities during the period from February 1992 to October 1992. [5]
5. Exhibit 7, paragraph 4 (Court Book, page 1452).
Subsequent correspondence between MDN and Mr Preston did not result in payment of the fees claimed by MDN or delivery by MDN to the plaintiff of itemised bills or the legal files for work undertaken for the Preston entities. [6]
6. Exhibit 7, paragraph 5 (Court Book, page 1452); Preston v Nikolaidis, Supreme Court of New South Wales, R S Hulme J, 28 February 1995, unreported (“1995 judgment”), pages 1–2.

Commencement of the 1993 proceeding

By summons filed on 24 August 1993, Mr Preston (as first plaintiff) and Western Suburbs Constructions Pty Ltd (formerly Preston Erections Pty Ltd) (as second plaintiff) commenced the 1993 proceeding against Messrs Mitrofanis and Leon Nikolaidis trading as M D Nikolaidis & Co. It is convenient to refer to this as the 1993 summons to distinguish it from the summons subsequently filed in 2015.
In the 1993 summons, the plaintiffs claimed: [7]
7. Court Book, pages 1–4.

orders pursuant to s 208 of the Legal Profession Act 1987 (NSW) (the 1987 Act) that bills of costs be delivered to the plaintiffs in respect of 20 matters (prayer 1);

orders referring each of those matters for taxation pursuant to ss 199 and 200 of the 1987 Act (prayer 2);

orders that the defendants deliver up to the plaintiffs their documents in relation to four matters (prayer 3);

an order that accounts be taken of moneys paid to the defendants for costs in respect of the 20 matters, and the disbursement and application of those moneys (prayers 4(a), 5 and 6);

an order that accounts be taken of a specific payment of $50,000 made into the defendants’ trust account in respect of one of the 20 matters in or about July 1989, and the disbursement and application of that money (prayers 4(b), 5 and 6).

It is convenient at this stage to record that there have been some changes to the parties to the 1993 proceeding over the course of its very long history.
The Court was informed that Western Suburbs Constructions Pty Ltd has been dissolved in the period since the filing of the 1993 summons. This explains why Mr Preston is the only named plaintiff in the verified pleading and the only applicant on the Motion. References in these reasons to the plaintiff (singular) are references to Mr Preston only. References to the plaintiffs (plural) are references to Mr Preston and Western Suburbs Constructions Pty Ltd at a time when that company was still a plaintiff in the 1993 proceeding.
Mr Mitrofanis Nikolaidis died in July 2002. His wife, Mrs Doreen Nikolaidis, then became the first defendant in the 1993 proceeding in her capacity as executrix of his estate.
Mrs Nikolaidis died in June 2012. Mr Leon Nikolaidis, who is the second defendant in the 1993 proceeding, then became the executor of the estate of Mr Mitrofanis Nikolaidis and represented the interests of the first defendant in that capacity.
Mr Michael Zwar became a partner of MDN in June 1992 [8] and became the third defendant in the 1993 proceeding pursuant to an order made on 11 May 2010.
8. Affidavit of Michael Zwar sworn on 27 December 2019, paragraph 7 (Court Book, page 1249).

Relevant procedural history and factual matters

The unfortunate history of this matter from the filing of the 1993 summons until June 2015 is summarised in a lengthy agreed narrative that the parties prepared pursuant to a direction made by Slattery J in October 2015 for the purpose of the hearing that resulted in his Honour’s judgment delivered in November 2017: Preston v Nikolaidis [2017] NSWSC 1527 (the 2017 judgment).
The same agreed narrative was tendered at the hearing of the Motion before me as a record of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), subject to leave being granted to the defendants to adduce evidence to qualify one of the agreed facts in the narrative. [9]
9. Exhibit 7; transcript, page 80 (line 6) – page 82 (line 10) and page 84 (lines 24–34).
What follows is a chronological account of matters relevant to the Motion that emerge from the agreed facts, other evidence adduced by the parties at the hearing of the Motion and certain orders made and judgments delivered previously in the 1993 proceeding which the parties included in the Court Book and asked me to take into account in determining the Motion.
On 9 November 1993, R S Hulme J made orders requiring the defendants to deliver to the plaintiffs bills of costs in 16 of the 20 matters listed in the 1993 summons. [10]
10. Exhibit 7, paragraphs 9–11 (Court Book, pages 1454–1456); Preston v Nikolaidis [2017] NSWSC 1527 (“2017 judgment”) at [52]–[55].
The defendants complied with that order by mid-December 1993. On 16 December 1993, R S Hulme J made orders referring those bills of costs to taxation. [11]
11. Exhibit 7, paragraphs 13–15 (Court Book, pages 1456–1457); 2017 judgment at [56]–[58].
On 16 December 1993, R S Hulme J also made an order requiring the defendants to make all of their files in respect of the matters listed in the schedule to the 1993 summons available to a costs expert appointed by the plaintiffs. The matters listed in the schedule were the 20 matters to which I have referred at [12] above. In the first half of 1994, a costs consultant and expert engaged by the plaintiffs, together with the solicitors for the plaintiffs, attended MDN’s offices on a number of occasions and inspected MDN’s files in relation to the 16 matters. [12]
12. Exhibit 7, paragraphs 13–15, 17 (Court Book, pages 1456–1457); 2017 judgment at [59]–[61].
On 9 June 1994, R S Hulme J made orders for the taking of an account in relation to payments that the Preston entities had made to MDN and referred the taking of that account to a referee for inquiry and report. [13] It is convenient to set out in full paragraphs 1 to 3 of those orders (incorporating an amendment to paragraph 3(f) that was made by further orders made on 14 October 1994): [14]
13. Exhibit 7, paragraphs 18–20; 2017 judgment at [63]–[65].
14. Court Book, pages 1547–1551. This is the matter in respect of which the defendants were given leave to adduce additional evidence pursuant to s 191 of the Evidence Act 1995 (NSW).

“ 1. Pursuant to Part 72r(2)(1) refer to Mr G D Needham, QC the account and objections referred to in paragraph 3 below for inquiry and report.

In these terms of reference the term ‘Plaintiffs’ means and includes:
i. Preston International Pty Limited (Thorsten) (ACN 003 792 247)
ii. Preston Erection Pty Limited (Preston Equipment Hire) (ACN 003 991 062)
iii. Nilbrook Pty Limited (ACN 050 070 374)
iv. Gemit Pty Limited (ACN 001 951 239)
v. Mevon Pty Limited (ACN 002 601 363)
vi. Norfeld Pty Limited (ACN 003 792 229)
vii. Four MJ Pty Limited (ACN 001 447 481)
viii. Gateside Pty Limited (ACN 003 798 945)
ix. Down to Earth Springwater (NSW) Pty Limited (Dunwich) (ACN 000 815 172)
x. Everything and Anything Storage Pty Limited (Redewood) (ACN 002 739 399)
xi. Preston Engineering Pty Limited (ACN 000 531 546)
xii. Down to Earth Springwater Pty Limited (ACN 050 058 476)
xiii. Deep Rock Springwater Pty Limited (ACN 056 626 941)
xiv. JC Preston Pty Limited (in Liquidation) (No ACN No.) 1980 litigation
xv. JC & ME Properties (Partnership) (No ACN No.)
xvi. John Preston
xvii. Marjo Preston
xviii. Preston Family Trust
Make the following directions for the purpose of facilitating the reference:
(a)   within 14 days of the making of this Order the Defendants    shall:
(i)   serve on the Plaintiffs their detailed account verified by their affidavit of all moneys received by them from the Plaintiffs (or on their behalf) and disbursed by the Defendants on their behalf as solicitors, and of the dealings and transactions of the Defendants therewith upon the trust and other accounts kept by the Defendants in relation to the Plaintiff;
(ii)   the said account shall specify in respect of each payment and receipt:
(1)   the date and account thereof;
(2)   to whom payment was made;
(3)   the purpose or account to which the amount was paid, appropriated or received, as the case may be;
(4)   the manner in which all payments received in respect of fees and disbursement were dealt with, with reference to particular files and matters;
(b)   permit the Plaintiffs to inspect all entries in the Defendants’ trust and general account ledgers relating to any work done or accounts charged by the Defendants in connection with the affairs of the Plaintiffs;
(c)   The items of account shall be numbered consecutively.
(d)   Within 21 days after service upon them of the said account and affidavits, the Plaintiffs to notify the Defendants of their objections and any items in dispute.
(e)   The hearing of the inquiry to be before the referee on such date as he may direct.
(f)   Permit the Plaintiffs (as defined in Clause 2) to inspect the entries in the Defendants ledgers or other accounting records relating to payments made or alleged to be made to the Defendants. [15]
15. As amended on 14 October 1994 (Court Book, pages 1548–1549 and 1552).
…
7.   The referee shall have power to permit such amendments or additions to the matter in paragraph 3 as the referee sees fit in order to dispose of the true issues between the parties the subject of the reference.”
1. The status of the 1993 proceeding as at June 1994 may be summarised as follows. [16]
  16. Exhibit 7, paragraphs 21–23 (Court Book, page 1458); 2017 judgment at [66]–[68].
2. First, the plaintiffs’ claims for relief in prayers 1 and 2 of the 1993 summons were the subject of the orders made on 9 November 1993 and 16 December 1993.
3. Second, the plaintiffs’ claims for relief in prayers 4, 5 and 6 of the 1993 summons were the subject of the reference that had been ordered on 9 June 1994. As I have noted immediately above, the effect of the orders made on 9 June 1994 was to extend the scope of that reference considerably beyond prayers 4, 5 and 6 of the 1993 summons. It will be necessary to return to the subject of the scope of the reference later in these reasons.
4. Third, the plaintiffs’ claims for delivery of files in prayer 3 of the 1993 summons had been the subject of argument before Hulme J in about October 1993. The plaintiffs sought unconditional delivery of the four files referred to in the 1993 summons and the defendants exercised a lien over those files and resisted delivery of the files unless fees that they claimed were owing to them were paid. Although no formal orders were made, R S Hulme J indicated to the parties his conclusion that “the plaintiffs should pay something of the order of a third of the sum claimed, or a little more, and provide security for the another third, or a little more”. [17] At the hearing of the Motion, the Court was informed that the plaintiffs did not pay or provide the security required by R S Hulme J’s decision and the defendants therefore did not deliver the four files.
  17. 1995 judgment, pages 2–3.
5. The orders made on 9 June 1994 required the referee to submit his report to the Court by 1 September 1994. [18] On 14 October 1994, R S Hulme J made further orders extending the time for delivery of the report to 30 November 1994 and making additional orders concerning the procedures to apply to the inspection of the defendants’ records by or in behalf of the plaintiffs for the purpose of the taking of accounts and the reference. [19]
  18. Order 6(c) at Court Book, page 1550.
  19. Exhibit 7, paragraph 27 (Court Book, page 1459); 2017 judgment at [73]; Court Book, pages 1552–1553.
6. The defendants commissioned a report referred to by the parties as the DRAW Report. [20]
  20. Exhibit 7, paragraph 24 (Court Book, page 1458); 2017 judgment at [69].
7. Although the agreed narrative states that the defendants commissioned Armstrong Wily, chartered accountants to prepare the report, it was in fact issued by DRAW Services Pty Ltd. [21]
  21. The letterhead names H J Wily and A H Wily as two directors of DRAW Services Pty Ltd: Exhibit 1 (at Court Book, page 241).
8. The report dated 24 July 1994 describes the scope of the exercise undertaken by DRAW Services Pty Ltd: [22]
  22. Exhibit 1 (at Court Book, pages 241 and 242).

“In preparing this report, we have not been instructed to conduct an audit on the transactions contained herein. Our approach has been to obtain from the defendants, a listing of all invoices raised by the defendants during the period under review. From this listing of invoices (as summarised in Annexure No. 1) we have then analysed the defendant’s accounting records to arrive at the position concerning each invoice at 16^th October 1992. Our report makes no comment on the charge out rates adopted by the defendants as contained in their invoices.

…

The specific question you have asked our office to address is as follows:

We have been asked to prepare a detailed account of all money received by the defendants and disbursed by the defendants on the plaintiffs behalf as their solicitors during the period under review. Our report in respect of each payment and receipt:
(a)   The date and account number
(b)   To whom the payment was made
(c)   The purpose or account to which the amount was paid, appropriated or received, as the case may be
(d)   The manner in which all payments received in respect of fees and disbursements were dealt with, with reference to particular files and matters.”

The terms of the specific question reflected the scope of the detailed account that the defendants were required to serve on the plaintiffs pursuant to order 3(a)(i) and (ii) made on 9 June 1994. It is clear from Annexure 1 to the DRAW Report that the period under review was the period from 10 July 1994 to 16 October 1992. [23]
23. Exhibit 1 (at Court Book, pages 245–250).
The DRAW Report calculated that the plaintiffs were indebted to the defendants in the amount of $116,168.55. [24]
24. Exhibit 1 (at Court Book, page 243); Exhibit 7, paragraph 24 (Court Book, page 1458); 2017 judgment at [69].
Mr Zwar gave evidence to the effect that, during the period from June to November 1994, Mr Preston and members of his “audit team” attended MDN’s offices on several occasions and spent many hours inspecting the files maintained by MDN relating to work carried out for the Preston entities during the entire period of their relationship from 1984 to October 1992, together with MDN’s time sheets, draft bills, bills, debtors ledgers, trust and office account receipt books, ledgers, cheque books and deposit books insofar as they related to those matters. [25]
25. Affidavit of Michael Zwar sworn 27 December 2019, paragraphs 1–6, 52 and 62–67 (Court Book, pages 1246–1249 and 1259–1264).
According to Mr Zwar, Mr Preston’s “audit team” included: [26]
26. Affidavit of Michael Zwar sworn 27 December 2019, paragraphs 6 and 62 (Court Book, pages 1247–1249 and 1263).

Mr Preston himself;

Mr Ian Greenwood, a chartered accountant engaged by the Preston entities;

Mr Sami Batarcheree, an accountant within the employ of the Preston entities;

Mr R A Humphries, a chartered accountant engaged by Madgwicks Solicitors on behalf of the Preston entities;

Mr Tori Kitamura of Madgwicks Solicitors, who were then acting on behalf of the Preston entities in the 1993 proceeding; and

Mr Tim Rybak, a solicitor and costs consultant engaged on behalf of the Preston entities.

The plaintiff disputed that he or his representatives inspected MDN’s legal files in respect of all of the matters in which MDN had acted for the Preston entities. His evidence was to the effect that Mr Rybak had inspected MDN’s legal files in the 16 matters in which the itemised bills had been referred for taxation and the Mr Leon Nikolaidis declined to allow the plaintiff to participate in that inspection because the defendants were exercising a lien over all of the legal files for the Preston entities as security for the fees of $95,749.40 that they claimed were owing to them. Mr Greenwood inspected MDN’s ledgers and accounting records, but not legal files, in relation to all matters in which MDN had acted for the Preston entities. Mr Greenwood was the only person involved in this inspection. Although the terms of the orders made on 9 June 1994 and the further orders made on 14 October 1994 permitted the plaintiff to participate in the inspection of those accounting records, he did not accompany Mr Greenwood because the plaintiff did not have accounting expertise. [27]
27. Affidavit of John Preston sworn on 18 February 2020, paragraphs 13–21 (Court Book, pages 888–890).
As will become apparent later in these reasons, the question whether the plaintiff (or his representatives) inspected MDN’s legal files in respect of Preston entity matters (other than the 16 matters that were the subject of the order for taxation) has some relevance to the defendants’ contentions concerning Anshun estoppel. I do not consider that the evidence establishes, on the balance of probabilities, that the plaintiff or any other person acting on his behalf inspected those legal files. First, the orders made by the Court did not entitle the plaintiff to inspect those legal files, [28] and it is inherently improbable that the defendants would have voluntarily permitted him or his representatives to do so in circumstances where they were exercising a lien over all files. Second, the plaintiff’s evidence on this issue is consistent with contemporaneous advice that he received from a chartered accountant concerning the scope of the records to which he should seek access for the purpose of the taking of the account that had been ordered on 9 June 1994. That advice recommended that the plaintiff request access to a wider range of accounting records but did not recommend that the plaintiff request access to MDN’s legal files. A copy of the letter of advice dated 6 September 1994 was exhibited to Mr Zwar’s affidavit. [29]
28. Orders 3(b) and 3(f) made on 9 June 1994 (at Court Book, pages 1547–1551), as set out in [24] above; orders made on 14 October 1994 (at Court Book, pages 1552–1553), as referred to at [39] below.
29. Affidavit of Michael Zwar sworn on 27 December 2019, paragraph 68 (Court Book, pages 1264, 1340–1342).
On 14 October 1994, R S Hulme J made further orders requiring Mr Preston and Mr Greenwood and any of Mr Greenwood’s employees engaged in the inspection of the defendants’ records to give undertakings in a form to be agreed between the parties to confine their inspection to records relating to “the Plaintiffs” (as defined in order 2 made on 9 June 1994). His Honour also extended to 2 November 1994 the time for “the Plaintiffs” to notify the defendants of their objections to the defendants’ detailed account and any items in dispute pursuant to order 3(d) made on 9 June 1994. [30]
30. Court Book, pages 1552–1553.
On 15 November 1994, the solicitors then acting for the plaintiffs wrote to the defendants informing them that the plaintiffs no longer pursued the reference for the taking of an account. The letter stated: [31]
31. Exhibit 7, paragraphs 28–29 (Court Book, pages 1459–1460); 2017 judgment at [74]–[76].

“… in consequence of the books of your firm being made available pursuant to the orders made on 9^th June 1994, confirmed on 12^th October 1994, my clients’ accountants have been able to reconcile payments made by my clients to your firm with particular accounts for professional work. It is quite apparent that, in the absence of this examination such reconciliation would have been impossible. Because the reconciliation was effected it will now be unnecessary for the parties to incur the expense of pursuing the reference.”

As a consequence of this letter, the taking of an account and the reference before Mr Needham QC was at an end in a practical sense, although orders revoking the reference were not made until mid-1996. [32]
32. Exhibit 7, paragraph 30 (Court Book, page 1460); 2017 judgment at [77].
On 2 December 1994, R S Hulme J made directions requiring the plaintiffs and defendants to file and serve the evidence on which they wished to rely, and to identify evidence already filed on which they wished to rely, in respect of the plaintiffs’ application for costs, the defendants’ opposition to the plaintiffs’ application for costs and any application for costs to be made by the defendants. [33]
33. Court Book, page 1729.
On 28 February 1995, there was a hearing before R S Hulme J, the purpose of which was described by his Honour as being “to deal with the question of costs, as in substance the substantive relief sought has now all been the subject of orders”. [34] It is convenient to refer to his Honour’s judgment delivered on that day as the 1995 judgment.
34. Exhibit 7, paragraph 32 (Court Book, page 1460); 1995 judgment, page 1 (Court Book, page 1554).
His Honour considered a submission made by the defendants’ legal representative that the proceedings were an abuse of process. His Honour said: [35]
35. 1995 judgment, page 2 (Court Book, page 1555).

“Mr Chippendall, appearing for the defendants, has urged me to find that the proceedings were an abuse of process, and has directed me to evidence which certainly argues in favour of the view that the plaintiffs have been motivated by factors quite extraneous to their rights as reflected in the summons, in instituting and prosecuting the proceedings.

Given the fact that the plaintiffs have not sought to respond, in particular to an affidavit of Mr Nikolaidis of 18 January 1995, I think the proper conclusion that I should draw is not only that there is such evidence, but that I should draw the inference which is suggested. However, it is I think primarily the defendant’s fault that the plaintiffs did not obtain what they were entitled to in terms of orders 1 and 2 of the summons without the necessity of coming to court, and I do not regard the plaintiffs’ motivation as a reason for disqualifying them from obtaining an order for costs, if that is otherwise appropriate. That motivation thought [sic] would certainly encourage me towards an order for party and party costs rather than on some basis more attractive to the plaintiffs.”

R S Hulme J considered that the plaintiffs had been successful in respect of prayers 1 and 2 of the 1993 summons and unsuccessful in respect of prayer 3. [36] In relation to prayer 4, his Honour said: [37]
36. Exhibit 7, paragraphs 35–36 (Court Book, page 1461); 2017 judgment at [82]–[83]; 1995 judgment, pages 1–3 (Court Book, pages 1554–1556).
37. Exhibit 7, paragraph 37 (Court Book, pages 1461–1462); 2017 judgment at [84]; 1995 judgment, pages 3–5 (Court Book, pages 1556–1558).

“The fourth order sought was for the taking of accounts. That issue arose in the context of a claim by the defendants that the plaintiffs were indebted to them in the sum of some $97,000 and the plaintiffs were denying in effect any indebtedness, although the taking of accounts was directed to ascertain the situation.

Ultimately orders were made for the production by the defendants of a detailed statement of the financial transactions with their clients, for the inspection of the defendant’s files by or on behalf of the plaintiffs, and for the reference of the question of accounts to Mr Needham QC.

Consequent upon the interlocutory orders made, the defendants engaged Armstrong Wylie & Co to prepare a report analysing the various financial transactions which had occurred between the parties. The conclusion at which that firm arrived was that the defendants [sic – plaintiffs] were indebted to the plaintiffs [sic – defendants] on those accounts – which I interpolate did not reflect any taxation of bills – in an amount of some $116,000, an amount which it will be noted exceeds that which the defendants were claiming. The sum of $116,000 seems to have been arrived at after holding against the defendants the absence of some records of matters which the accountants would have expected.

Following upon the plaintiffs’ receipt of that report and consideration of the matter by accountants or other person engaged on their behalf, the plaintiffs indicated that they would no longer purse the topic of their reference before Mr Needham. I think the only proper inference to be drawn from the plaintiffs’ conduct in this regard is that the plaintiffs were conceding that the defendants’ claim for some $97,000 was, on the basis which was then advanced, correct. Again I interpolate, this is without any taxation.

Accordingly the plaintiffs have lost the issue raised by order 4 in the ultimate …”

R S Hulme J considered that the plaintiffs’ success in relation to prayers 1 and 2 of the 1993 summons should carry an order for costs in their favour, absent some countervailing considerations, whilst their lack of success in relation to prayer 3 should carry some costs implications against them and the outcome of prayer 4, considered in isolation, militated in favour of an order for costs in favour of the defendants. His Honour then referred to the history of the proceeding over the previous 18 months and acknowledged that the mere fact that each party had been successful on some issues and unsuccessful on others was not a reason for making no order as to costs without regard to the costs likely to have been generated by the issues. [38] His Honour continued: [39]
38. 1995 judgment, pages 1 and 3–5 (Court Book, pages 1554 and 1556–1558).
39. 1995 judgment, page 6 (Court Book, page 1559).

“However, when I reflect on the time which has been taken on the respective issues, and reflect on the likely amount of work involved in each, it seems to me that justice in this case will be done if I leave each party to pay his or its own costs of the proceedings. I will make an order to that effect.

… I do intend that the orders which I have envisaged should be made irrespective of the result which ensues upon taxation.

The issues on prayers 3 and 4 of the summons as they have been raised before me, do not depend upon the ultimate result of taxation.

It seems to me that I can effect the intention apparent in the above if the formal orders I made are these:

(1) I confirm existing orders for costs.
(2) Except in so far as orders have previously been made thereon, I dismiss the summons.

I make no order as to costs.”

The first Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading is: [40]
40. Verified pleading, paragraph 26(a).

“On 28 February 1995 Hulme J, in relation to the costs of the 1993 Proceeding to date, confirmed the existing costs orders, but otherwise decided to make no order as to costs.”

Order 1 made by R S Hulme J on 28 February 1995 confirmed existing orders that had been made in the 1993 proceeding. That was the only order that R S Hulme J made in relation to costs. None of the previous costs orders confirmed by that order were adverse to the plaintiffs. [41] Insofar as the verified pleading relates to orders made on 28 February 1995, the substance of the plaintiff’s claim is a claim to set aside R S Hulme J’s judgment delivered on 28 February 1995 in which his Honour determined to make no order as to costs other than confirming existing costs orders.
41. Court Book, pages 1725–1730.
The second Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading is: [42]
42. Verified pleading, paragraph 26(b); Court Book, page 1732.

“On 3 May 1996 a registrar ordered that the plaintiff pay the costs of the defendants (which included the third defendant) of the day.”

With effect from 1 July 1994, the Legal Profession Reform Act 1993 (NSW) introduced the system of costs assessment to replace taxation of bills of costs by an officer of the Court.
On 25 July 1996, Young J (as his Honour then was) heard various applications by the parties concerning the ongoing process of taxation of the bills that were the subject of the orders made on 16 December 1993, and an application by the plaintiffs for assessment of costs payable to them in respect of various interlocutory costs orders that had been made in the 1993 proceeding. His Honour made orders referring for assessment pursuant to s 206(1) of the amended 1987 Act the bills of costs that had previously been referred for taxation pursuant to the orders made on 16 December 1993. At the same time, the Court referred to the costs assessor as referee for inquiry and report certain issues that had arisen concerning the terms of MDN’s retainer (the retainer issues). [43]
43. Exhibit 7, paragraphs 26, 43–64 (Court Book, pages 1459 and 1464–1470); Court Book, page 1733; 2017 judgment at [70]–[72], [91]–[120].
Young J also made an order on 25 July 1996 that each party pay their own costs of notices of motion filed in the 1993 proceeding during 1996 to date, save that the defendant should pay the costs of preparing and filing a notice of motion filed by the plaintiffs on 25 June 1996. [44] That is the third Adverse Costs Order which the plaintiff would seek to set aside if leave were granted to file the verified pleading. [45]
44. Court Book, page 1733.
45. Verified pleading, paragraph 26(c).
After the orders made by Young J on 25 July 1996, the bills of costs that had previously been prepared for taxation were filed with the Registry in the form required by the new costs assessment regime and the plaintiffs filed objections to those bills. By March 1997, the bills in all of the 16 matters had been referred by the Registry to the costs assessor. [46]
46. Exhibit 7, paragraphs 65–77 (Court Book, pages 1470–1474); 2017 judgment at [125]–[134].
The costs assessor encouraged the parties to seek declarations from the Court establishing the terms and conditions of MDN’s retainer rather than having him determine the retainer issues as referee. On 5 November 1998, Young J set aside his order made on 25 July 1996 referring the retainer issues to the assessor for inquiry and report. [47] The orders referring the bills for assessment remained on foot.
47. Exhibit 7, paragraphs 79–82 (Court Book, pages 1474–1475); 2017 judgment at [136]–[143].
After a number of skirmishes between the parties and the filing of points of claim and defence concerning the retainer issues, those issues were listed for hearing in February 2003. [48]
48. Exhibit 7, paragraphs 83–92 (Court Book, pages 1475–1480); 2017 judgment at [144]–[154].
The skirmishes to which I have referred above included a notice of motion filed by Mr Preston on 26 July 2000 seeking leave to amend the 1993 summons by adding eleven additional plaintiffs, adding Mr Zwar as a defendant and adding a prayer for an order that “any sums found, by virtue of the taxation and accounts referred to herein, to have been overpaid by any or all of the plaintiffs to the defendants be repaid”. [49]
49. Exhibit 7, paragraph 85 (Court Book, page 1476).
On 25 August 2000, Master McLaughlin dismissed the application for leave to amend. In the course of his reasons for judgment, his Honour said: [50]
50. Exhibit 7, paragraph 86 (Court Book, pages 1476–1478); Preston v Nikolaidis, Supreme Court of New South Wales, Master McLaughlin, 25 August 2000, unreported (Court Book, pages 1567–1572).

The defendants oppose the present application. The ground for the opposition essentially is that the relief sought in the summons has now been the subject of final orders by Hulme J on 28 February 1995. His Honour granted the relief sought in prayers 1 and 2 in the summons. His Honour otherwise dismissed the summons.
In those circumstances it is the submission of the defendants that the proceedings have been brought to a conclusion and that what the first plaintiff now seeks to do is in effect to resurrect proceedings that have been totally and finally dealt with.
The fact that the processes of conducting the taxation and the assessment, the subject of orders 1 and 2 in the summons may not yet have been brought to a conclusion does not in my view in any way affect the validity of the foregoing submission on the part of the defendants. It seems to me that what the applicant is attempting now to do is to reinstate proceedings which, if they should have been instituted at all, should have been instituted no later than the making of the final orders by Hulme J five and a half years ago.

To accede to the present application would in my view be verging on upon an abuse of the processes of the Court. …
I have no hesitation whatsoever in dismissing the present notice of motion.”
1. Master McLaughlin ordered the plaintiffs to pay the defendants’ costs of the motion on an indemnity basis. [51] That costs order is the fourth Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading. [52]
  51. Exhibit 7, paragraph 86 (Court Book, pages 1476–1478); Preston v Nikolaidis, Supreme Court of New South Wales, Master McLaughlin, 25 August 2000, unreported (Court Book, pages 1567–1572).
  52. Verified pleading, paragraph 26(d).
2. On 11 April 2001, Bryson J (as his Honour then was) ordered the plaintiffs to pay the defendants’ costs of a case management hearing conducted before his Honour that day at which orders were made confirming that the Court would determine the retainer issues and directions were made for the filing of amended points of claim and defence on the retainer issues. [53] His Honour’s costs order is the fifth Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading. [54]
  53. Exhibit 7, paragraphs 87–88 (Court Book, page 1479); Court Book, pages 1745–1746.
  54. Verified pleading, paragraph 26(e).
3. The sixth Adverse Costs Order that the plaintiff would seek to set aside is described in the verified pleading as follows: [55]
  55. Verified pleading, paragraph 26(f).

“On 31 May 2001 Windeyer J ordered that a notice of motion for contempt filed by the plaintiff be dismissed with no order as to costs.”

According to the copy of the record of orders in the 1993 proceeding maintained by the NSW Online Registry that was included in the Court Book, that order was made by consent. [56]
56. Court Book, page 1745.
Amended points of claim and defence concerning the retainer issues were filed in July and August 2001. On 15 April 2002, the plaintiffs filed further amended points of claim pursuant to leave granted by Gzell J. In the further amended points of claim, the plaintiffs alleged that the second defendant (Mr Leon Nikolaidis) had fraudulently created a letter bearing the date 19 April 1984 and three other documents. The 19 April 1984 letter was relevant to the plaintiffs’ contentions concerning the retainer issues to be determined by the Court. The further amended points of claim sought a declaration as to the terms of the retainer, a declaration that the second defendant was guilty of fraudulent conduct as alleged in the points of claim, and a declaration that the defendants’ bills of costs in respect of the 16 matters in the 1993 summons were unenforceable as tainted by the second defendant’s fraudulent conduct. [57]
57. Exhibit 7, paragraphs 89–90 (Court Book, pages 1479–1480); Preston v Nikolaidis [2010] NSWSC 131 at [36]–[38], [49] (Court Book, pages 1594–1595 and 1598).
The 1993 proceeding was stayed between 21 November 2002 and 12 May 2009 due to the criminal trial and conviction of Mr Leon Nikolaidis on one count of making a false instrument, which was then an offence under s 300(1) of the Crimes Act 1900 (NSW). The instrument in question was the letter bearing the date 19 April 1984. Accordingly, the hearing that had been fixed for February 2003 was vacated. [58] The costs assessment process, which had already stalled pending the determination of the retainer issues, [59] was further delayed.
58. Exhibit 7, paragraphs 93–97 (Court Book, pages 1480–1481); 2017 judgment at [155]–[158], [160].
59. Exhibit 7, paragraph 87 (Court Book, page 1479).
The stay was discharged by order made by Bergin CJ in Eq on 12 May 2009. [60] Her Honour also made the following orders on that date: [61]
60. Exhibit 7, paragraph 97 (Court Book, page 1481).
61. Exhibit 7, paragraph 98 (Court Book, pages 1481–1482).

I order that the plaintiff produce to the defendant by no later than 25 May 2009 a list of the fee notes or bills that are in question in the litigation setting out in schedule form the amount rendered in the bill and the amount alleged by the plaintiff to be an overcharging of the plaintiff.
The plaintiff to provide copies of those bills placed behind the list and schedule referred to in order 2.
I order that the matter proceed on pleadings and that the plaintiff file and serve a statement of claim by not later than 8 June 2009 subject to the defendants’ entitlement to raise any objection to the matters pleaded by reason of any claims that the matters raised in the pleading have already been dealt with or have been abandoned or are the subject of the statute of limitations.”
1. On 19 June 2009, the plaintiff filed a statement of claim as envisaged by the Chief Judge’s orders. [62]
  62. Exhibit 7, paragraph 99 (Court Book, page 1482).
2. The statement of claim sought the following orders: [63]
  63. Preston v Nikolaidis [2010] NSWSC 131 at [52] (Court Book, pages 1599–1600).
An order that the defendants deliver up to the plaintiffs, or alternatively the court, such files of the plaintiffs as remain in the possession of the defendants.
An order for the taking of accounts by the defendants in common form or alternatively on the basis of wilful default as the court may determine.
Further or alternatively, an order that such question or questions as the court may determine be referred pursuant to Part 20 of the Uniform Civil Procedure Rules.
A declaration that a document generated by Leon Nikolaidis dated 19 April 1984 is void and of no effect.
An order that the defendants be ordered to pay the plaintiff such amount as the court may determine.
Damages.
Equitable compensation.
Interest pursuant to s 101 of the Civil Procedure Act 2005 and Part 36.7 of the Uniform Civil Procedure Rules.
The defendants to pay the plaintiff’s costs.”
1. The defendants responded by filing a notice of motion on 2 October 2009 seeking an order dismissing the 1993 proceeding pursuant to UCPR r 13.4. [64]
  64. Exhibit 7, paragraph 100 (Court Book, page 1482); Preston v Nikolaidis [2010] NSWSC 131 at [1] (Court Book, page 1576).
2. The defendants’ motion was heard by Barrett J (as his Honour then was) on 17 December 2009 and is the subject of his Honour’s reasons for judgment published on 2 March 2010. His Honour declined to dismiss the 1993 proceeding, but struck out the statement of claim that had been filed by the plaintiffs on 19 June 2009.
3. Barrett J undertook a detailed examination of the history of the 1993 proceeding up to the filing of the plaintiffs’ further amended points of claim on 15 April 2002, the stay of the proceeding, and the orders made by Bergin CJ in Eq on 12 May 2009 the lifting of the stay. [65] His Honour then referred to the differences between the plaintiff’s case pleaded in the 15 April 2002 further amended points of claim and his case pleaded in the 19 June 2009 statement of claim. In particular, the 19 June 2009 statement of claim introduced for the first time claims for damages or equitable compensation for alleged overcharging in breach of retainer and breach of fiduciary duty. [66]
  65. Preston v Nikolaidis [2010] NSWSC 131 at [1]–[52].
  66. Ibid at [53]–[54].
4. Barrett J identified three main questions raised for determination by the defendants’ motion for dismissal: [67]
  67. Ibid at [55].
Whether orders made in the past disposed of the proceedings in their entirety, so that there is nothing left requiring adjudication.
Whether the statement of claim filed on 19 June 2009 is authorised by order 4 made by Bergin CJ in Eq on 11 May 2009.
Whether the claims in the statement of claim are statute-barred so that they cannot now be pursued.”
1. In relation to the first question, his Honour said (emphasis added): [68]
  68. Ibid at [56]–[61] (Court Book, pages 1601–1603); Exhibit 7, paragraphs [39]–[40] (Court Book, pages 1462–1464); 2017 judgment at [87]–[88].
… I am of the opinion that orders made in the past disposed of the proceedings in part but not in their entirety. It is true that the orders made by R S Hulme J on 28 February 1995 included the following:
‘Except in so far as orders have previously been made thereon, I dismiss the summons.’
At an earlier point, however, his Honour had made two orders of significance. On 16 December 1993, he ordered that ‘there be referred for taxation’ the identified bills of costs. On 9 June 1994, he referred to a referee ‘for inquiry and report’ what were described as ‘the account and objections referred to in paragraph 3 below’. That paragraph 3 contained directions for the preparation of a detailed account of moneys received by ‘the Defendants’ from ‘the Plaintiffs’ and of the disbursement of and dealings with those moneys, with provision for ‘the Plaintiffs’ to notify their objections and ‘any items in dispute’.
The effect of those two orders was to set in train two separate processes directed towards a final determination of the state of the account between the plaintiffs and the solicitors. This was obviously with a view to the determination of the claims advanced by the summons, as set out at paragraph [4] above. The need to determine those claims remained extant when R S Hulme J made the orders of 28 February 1995. Order (2) of that date quoted at paragraph [17] above was, by its terms, in the nature of a residual order – in the sense that it dealt with matters not already dealt with in some other way. It therefore did not operate to cut across the processes that had already been set in train to determine the liability of the plaintiffs to the defendants for costs and the state of account between the plaintiffs and the defendants as their solicitors.
It is clear that there was an expectation on the part of R S Hulme J that the processes set in train by his orders would determine both those matters – subject, of course, to adoption by the court of the report to be prepared by the referee in respect of the second matter; and with the possibility that the court might decline to adopt the report or might adopt it with modifications. As at 28 February 1995, however, his Honour stated that a position had been reached where the taxation of costs was proceeding but neither party wished to pursue the reference to the Honourable G D Needham QC; also that the plaintiffs had conceded, in respect of paragraph 4 of the summons (that is, the claim for an order that accounts be taken), that the defendants’ claim for ‘some $97,000’ was ‘correct’ (with the question of taxation of costs still left to one side). The letter of 15 November 1994 referred to at paragraph [18] above supported the conclusion that the parties had reached a compromise on the account aspect.
The court thus noted on 28 February 1995 that agreement between the parties had produced a result where the plaintiffs were to pay a stated sum to the defendants and there was no need for an account. It was that conclusion that led R S Hulme J to say, ‘the plaintiffs have lost the issue raised by order 4 in the ultimate’. The order than [sic] made dismissing the summons ‘[e]xcept in so far as orders have previously been made’ must therefore be taken to have extended to the claim in paragraph 4 of the summons, that is, the claim for an order than accounts be taken. That part of the proceedings was, at that time, concluded and the claims in the summons were, at least to that extent fully adjudicated.
What is perfectly clear, however, is that the adjudication of 28 February 1995 did not touch upon or affect the part of the relief claimed in the summons that was concerned with the quantification of solicitor-client costs. When R S Hulme J made what was, in a sense, a residual order of dismissal on that day, the orders of 9 November 1993 and 16 December 1993 were extant with respect to the question of quantification of costs. As a consequence, the proceedings remained alive in relation to the claims in paragraphs 1 and 2 of the summons. I say this because of the effect the orders of 9 November 1993 and 16 December 1993 actually had, having regard to the statutory scheme then in force.”
1. Barrett J then referred to the developments during the period between 1996 and 2000 which had led to the position that the Court was to determine the dispute between the parties concerning the terms of the defendants’ retainer. His Honour continued:
Ascertaining of the terms of the retainer has therefore been an established and central part of these proceedings for a long time; and there has been no adjudication on that matter.
It is for that reason that I am of the opinion that the proceedings have not been disposed of in their entirety by orders made in the past.”
1. In relation to the second question, his Honour held that the statement of claim filed by the plaintiff on 19 June 2009 was not authorised by order 4 made on 12 May 2009. The order that the matter proceed on pleadings was directed towards delineation of the case already advanced by the plaintiff. It did not entitle the plaintiff to add new claims or causes of action without first obtaining leave to amend. The claims in the further amended points of claim filed on 15 April 2002 went entirely to the retainer issues which were to be determined by the Court in order that the assessment of the costs in the 16 matters could then proceed. The question of fraud raised in the 15 April 2002 further amended points of claim bore a direct relationship to the terms of the retainer. The question of the effect on the retainer of any fraud in relation to the 19 April 1984 letter was within the scope of the necessary inquiry into the terms of the retainer. [69] However, the claims advanced in the 19 June 2009 statement of claim were: [70]
  69. Preston v Nikolaidis [2010] NSWSC 131 at [71]–[72].
  70. Ibid at [73]–[76].
… much wider than and quite different from those in the further amended points of claim. In the first place, there is a claim for the delivery up of ‘all such files of the plaintiffs as remain in the possession of the defendants’. Second, there is a claim for an order that accounts be taken by the defendants. Third, there is a claim that unspecified questions be referred out to a referee pursuant to Part 20 of the Uniform Civil Procedure Rules. There is no equivalent or similar relief specified in the further amended points of claim of 15 April 2002. There having been no grant of leave to amend to include those claims, they cannot be pursued. The order that the matter proceed on pleadings is insufficient to allow them to be pursued.
In relation to the second of the claims referred to in the immediately preceding paragraph, there is the additional point that, as I have said at paragraph [60] above, R S Hulme J’s order of dismissal made on 28 February 1995 extended to the claim in paragraph 4 of the summons for an order that accounts be taken. It follows that that aspect of these proceedings has been determined by the court. That is an additional reason why the claim for an account cannot now be renewed.
The same is true, to a certain extent, in relation to the claim in the statement of claim of 19 June 2009 for an order that the defendants deliver up ‘such files of the plaintiffs as remain in the possession of the defendants’. There was in the summons of 24 August 1993 a claim for an order that the defendants deliver up the plaintiffs’ documents in specified ‘matters’, each of which appears to have been a court proceeding to which one of the plaintiffs was a party and in which, it may be inferred, the defendants acted as that party’s solicitors. The order of dismissal of 28 February 1995 extended to that claim in the summons, with the result that the claim cannot now be renewed with respect to the documents in the particular matters.
Returning to the statement of claim filed on 19 June 2009, it may be noted that paragraphs 5, 6, 7 and 8 all advance claims for the payment of money by the defendants to the plaintiffs – in one case (paragraph 5) without any classification of the nature of the obligation to pay and in the others as damages (paragraph 6), equitable compensation (paragraph 7) and interest (paragraph 8). These are all new claims, in that that they have no counterpart in the further amended points of claim of 15 April 2002 or any earlier articulation of the plaintiffs’ case. It is therefore not open to the plaintiffs to pursue them in the absence of a grant of leave to amend. The order that the matter proceed on pleadings did not operate to allow any such amendment.”
1. In relation to [75] of his Honour’s judgment above, I note that the 1993 summons had sought an order requiring the defendants to deliver up to the plaintiffs the files in four specified matters only. [71] However, over the period from 1984 to October 1992, MDN had acted for the Preston entities in many matters. The plaintiff claims that MDN had acted for Preston entities in more than 50 matters. [72] Barrett J’s conclusion that the 19 June 2009 statement of claim was not authorised by the orders made by Bergin CJ in Eq on 12 May 2009 did not preclude the plaintiff from seeking leave to amend to introduce a claim for delivery up of the defendants’ files, save in respect of the files in the four matters that had been the subject of order 3 in the 1993 summons that had already been disposed of by R S Hulme J. [73]
  71. See [12] above.
  72. Verified pleading, paragraph 5.
  73. See [28] above.
2. Barrett J continued: [74]
  74. Preston v Nikolaidis [2010] NSWSC 131 at [77].
The only claim common, at least in substance (although not in precise terms), to the further amended points of claim of 15 April 2002 and the statement of claim filed on 19 June 2009 is the claim for declaratory relief as to the fraudulent character of the letter of 19 April 1984: see prayer (2) in the further amended points of claim and prayer 4 in the statement of claim. The purpose of or pretext for such a declaration is, however, quite different in each case. In the claims of 15 April 2002, the allegedly fraudulent character of the letter of 19 April 1984 goes to the validity or enforceability of the defendants’ retainer and therefore their right to the remuneration the quantification of which is the sole remaining purpose of these proceedings. In the claims of 19 June 2009, the allegedly fraudulent character of the letter is not raised in any way in relation to definition of the terms of the retainer for the purposes of quantification of costs. It is put forward as part of a quite separate case seeking an account or equitable compensation or damages for breach or retainer or breach of fiduciary duty. The pursuit of such a case is not open to the plaintiffs in the absence of leave to amend.”
1. His Honour did not find it necessary to deal with the third question identified above in light of his conclusions in relation to the first and second questions. [75]
  75. Ibid at [78].
2. Barrett J declined to grant the order sought by the defendants dismissing the 1993 proceeding because:
…. When it is recognised that the proceedings as now constituted are not as indicated by the statement of claim filed on 19 June 2009 but, rather, as indicated by the further amended points of claim of 15 April 2002, it is apparent that there remains extant a coherent but quite confined claim of the plaintiffs related to ascertaining the terms of the retainer which cannot be said to be affected by any of the rule 13.4 vices and which ought to be allowed to proceed to trial, assuming that the plaintiffs still wish to see it come to trial. It would therefore not be correct to dismiss the proceedings out of hand.”
1. Barrett J therefore dismissed the defendants’ notice of motion. However, his Honour also made an order striking out the statement of claim filed on 19 June 2009, stating:
Although the proceedings will not be dismissed, the record should be set right by ordering that the statement of claim filed on 19 June 2009 be struck out. Such an order is within the subsidiary claim in the notice of motion for ‘such further order as the nature of the case may require’. It will then be up to the plaintiffs to decide whether to seek leave to amend by converting the case as pleaded on 15 April 2002 into the quite radically different case indicated by the statement of claim filed on 19 June 2009 ….”
1. The plaintiffs did then apply to amend their case by filing a notice of motion on 30 March 2010 seeking leave to file a proposed statement of claim containing new claims for damages and equitable compensation. That notice of motion was also heard by Barrett J. In his reasons for judgment published on 11 May 2010, his Honour described the proposed amendments in the following terms: [76]
  76. Preston v Nikolaidis [2010] NSWSC 427 at [10]–[11].

The amended statement of claim now proposed by the plaintiff contains three substantive claims, being a claim for a declaration that the letter dated 19 April 1984 ‘is void and of no effect’, a claim for damages and a claim for equitable compensation. The second and third claims are new, in the sense that they had no counterpart in any of the pleadings put forward by the plaintiff up to further amended points of claim filed on 15 April 2002 (see paragraphs [50] and [51] of the reasons of 2 March 2010). The further amended points of claim claimed the following relief:
‘(1)   A declaration that the terms of the retainer agreement between the plaintiffs and the defendants in respect of the matters set out in the Schedule to the Summons are as pleaded herein.
(2)   A declaration that the second defendant is guilty of fraudulent conduct as alleged in paragraphs 71, 76 and 77 hereof in respect of the matters pleaded in paragraphs 65 to 70, 72 to 75 and 77 respectively hereof.
(3)   A declaration that in the events which have happened the defendants’ bills of costs in respect of the matters set forth in the Schedule to the Summons are unenforceable as tainted by the fraudulent conduct of the second defendant.
(4)   Such further or other declarations, orders and/or relief as the nature of the case may require.
(5)   An order that the defendants pay the plaintiffs costs of the proceedings on an indemnity basis.’
The claims for damages and equitable compensation now sought to be added by the plaintiff were first contained in the statement of claim of 19 June 2009 that was struck out by me on 2 March 2010. By that time, the proceedings had been on foot for sixteen years and the fraud of Leon Nikolaidis had played a part for some seven years.”
1. It is relevant to note that the plaintiffs did not pursue amendments seeking an order of the kind that had been included in the 19 June 2009 statement of claim for the delivery of all files maintained by the defendants in respect of legal services provided to the Preston entities.
2. Barrett J dismissed the plaintiffs’ motion for leave to file the statement of claim. His Honour said: [77]
  77. Ibid at [15].
Several factors combine to warrant refusal of the amendment the plaintiffs seek. First and as just mentioned, the amendment is not necessary to the determination of the ‘real questions’ in the proceedings (see Civil Procedure Act, s 64(2)). Second, the amendment is raised without adequate explanation many years after it could have been raised. Third, the amendment adds new factual dimensions many years after relevant events and at a time when recollections have obviously faded.”
1. In relation to the absence of any adequate explanation for the plaintiffs’ delay in seeking to introduce the new claims, Barrett J said: [78]
  78. Ibid at [13]–[14].
The rationale for the amendment is put as follows in the submissions of counsel for the plaintiff:
‘The matter has been complicated and has evolved factually from when proceedings were first filed in 1993 because of the fraud of Mr Nikolaidis. What had begun as a costs exercise has developed because the first plaintiff came to the realisation that he and his companies were routinely overcharged. As a consequence, while the claim is still at its centre a costs exercise, it has taken on a different form in order to ensure the plaintiffs and their related entities are in a position to argue for a recovery of the amounts they have overpaid.’
The fact is that the proceedings have always been no more than a ‘costs exercise’, their objective being to discover the true terms of the retainer so that a pending process of costs assessment may be properly informed. If, as the plaintiff fears, he and his companies ‘were routinely overcharged’, the costs assessments will show that; and if the assessments establish that the plaintiff and his companies paid more than they should have paid, that of itself will support a claim for recovery.”
1. At the same time as dismissing the plaintiffs’ motion, Barrett J ordered that there be no order as to costs in respect of either the defendants’ notice of motion seeking an order dismissing the proceedings (being the motion that his Honour had dismissed on 2 March 2010) or the plaintiffs’ notice of motion filed on 30 March 2010. [79] His Honour considered that, looking at the totality of the matters litigated on the two motions, each party had “enjoyed an appreciable measure of success and suffered an appreciable measure of failure”, such that “the discretion with respect to costs will be appropriately exercised by allowing costs to rest where they fall”. [80] That is the seventh Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading. [81]
  79. Exhibit 7, paragraphs 106–107 (Court Book, page 1484); Ibid (Court Book, pages 1616–1622); 2017 judgment at [169]–[172].
  80. Preston v Nikolaidis [2010] NSWSC 427 at [18]–[22] (Court Book, page 1621).
  81. Verified pleading, paragraph 26(g).
2. The plaintiffs then filed a pleading styled as an amended statement of claim which they subsequently consented to being struck out after they accepted that it sought relief precluded by Barrett J’s March 2010 judgment. On 1 October 2010, Rein J made an order by consent striking out that pleading. His Honour also ordered the plaintiffs to pay on an indemnity basis the defendants’ costs incurred in relation to that amended statement of claim, including the costs of a notice of motion filed on 23 August 2010. [82] That is the eighth Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading. [83]
  82. Exhibit 7, paragraphs 108–114 (Court Book, pages 1484–1485); Court Book, pages 1775; 2017 judgment at [173]–[179].
  83. Verified pleading, paragraph 26(h).
3. In October 2010, the plaintiffs’ solicitors wrote to the defendants’ solicitors stating that it appeared that the 1993 proceeding had been rendered futile by the passing of time because the time within which the defendants could bring an action on each of the invoices that the Court had referred to assessment had expired by the end of 1998 by reason of s 14(1) of the Limitation Act 1969 (NSW). The defendants’ solicitors replied disputing that the defendants’ right to recover outstanding fees in the subject invoices was statute-barred. The defendants’ solicitors advised that they intended to press for a date for final hearing of the claims for relief in the plaintiffs’ points of claim filed on 15 April 2002. [84]
  84. Exhibit 7, paragraphs 115–116 (Court Book, pages 1485–1487); 2017 judgment at [180]–[181].
4. On 9 May 2011, Bergin CJ in Eq listed the plaintiffs’ 15 April 2002 points of claim for hearing on 24 to 26 August 2011 and referred the proceeding to mediation to be conducted on or before 1 July 2011. As Black J recorded in a judgment subsequently published on 11 September 2011, those orders were made in circumstances where it was common ground before her Honour that the remaining issue to be determined by the Court was the hourly rates which were to be applied by a costs assessor in assessing the bills that had been referred for assessment pursuant to the orders made on 25 July 1996. [85]
  85. Exhibit 7, paragraphs 118–119 (Court Book, page 1487); Preston v Nikolaidis [2011] NSWSC 1074 at [1] (Court Book, pages 1624–1625); 2017 judgment at [183]–[185].
5. The mediation ultimately took place on 12 August 2011, and the parties entered into a written agreement in relation to the hourly rates to be applied in assessing the bills. [86] However, the plaintiff then wished to have the Court determine at the hearing that had been listed for 24 to 26 August 2011 whether he was personally liable to pay the defendants’ bills in 14 of the 16 matters that had been referred for assessment. The defendants contended that it was not open to the plaintiff to raise that issue in light of orders previously made in the 1993 proceeding. The hearing proceeded on 25 and 26 August 2011 before Black J for the primary purpose of determining whether the issue concerning Mr Preston’s personal liability was open in the 1993 proceeding. [87]
  86. Exhibit 7, paragraphs 120–121 (Court Book, pages 1487–1488); 2017 judgment at [186]–[187].
  87. Exhibit 7, paragraph 122 (Court Book, page 1488); Preston v Nikolaidis [2011] NSWSC 1074 at [2]–[3] (Court Book, page 1625); 2017 judgment at [188].
6. Black J held that the issue concerning Mr Preston’s personal liability had already been determined by the judgments and orders made in the 1993 proceeding by R S Hulme J. His Honour published reasons for judgment on 13 September 2011 and made orders on 16 September 2011 giving effect to that judgment. Those orders included a determination as to the terms of the retainer in relation to the bills in the 16 matters (reflecting the agreement reached by the parties at the mediation), an order to facilitate the assessment of those bills and an order that the plaintiffs pay the defendants’ costs incurred from 18 August 2011 onwards of and incidental to the hearing on 25 and 26 August 2011. [88] This last order is the ninth Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading. [89]
  88. Exhibit 7, paragraphs 123–127 (Court Book, pages 1488–1489); Court Book, page 1781; 2017 judgment at [189]–[196].
  89. Verified pleading, paragraph 26(i).
7. The Appeal Adverse Costs Orders that the plaintiff would seek to set aside if leave were granted to file the verified pleading were made by the Court of Appeal on 12 March 2012 and 21 June 2012. The orders require the plaintiffs to pay the defendants’ costs of the plaintiff’s unsuccessful application for leave to appeal from the judgment and orders of Black J and a notice of motion filed by the plaintiff within that appeal proceeding, which was dismissed. [90]
  90. Exhibit 7, paragraphs 128–132 (Court Book, pages 1489–1491); verified pleading, paragraph 32; 2017 judgment at [197]–[201].
8. The next step to progress resolution of the 1993 proceeding was to refer the defendants’ bills of costs in the 16 matters for assessment in accordance with the orders made by Young J on 25 July 1996 as varied the orders made by Black J on 16 September 2011. [91]
  91. Exhibit 7, paragraph 134 (Court Book, page 1491); 2017 judgment at [203].
9. By this stage (2012), the bills of costs and objections thereto that had been filed in 1996 and early 1997 could not be located. Orders were made on 17 May 2013 to facilitate the Court determining what were the documents that constituted those bills of costs and objections if the parties were unable to reach agreement about that matter. A hearing to determine that issue was ultimately listed before Darke J on 13 February 2014. [92]
  92. Exhibit 7, paragraphs135–144 (Court Book, pages 1492–1495); 2017 judgment at [204]–[213].
10. By the morning of 13 February 2014, the parties had reached agreement and orders were made by Darke J to give effect to that agreement and to facilitate the assessment of the bills. His Honour also ordered that, apart from costs orders previously made, each party bear its own costs between 9 August 2013 and 13 February 2014 of and incidental to the hearing listed for 13 February 2014. [93] This is the tenth Adverse Costs Order that the plaintiff would seek to set aside if leave were granted to file the verified pleading. [94]
  93. Exhibit 7, paragraphs 145–151 (Court Book, pages 1495–1499); 2017 judgment at [214]–[221].
  94. Verified pleading, paragraph 26(j).
11. The orders made by Darke J on 13 February 2014 required, inter alia, the preparation of a statement of issues by each party relating to the plaintiffs’ objections to the bills the subject of the costs assessment. In an amended statement of issues served on the defendants on 10 December 2014, the plaintiff stated his contention that the defendants’ entitlement to the costs the subject of the bills had been extinguished by ss 14 and 63 of the Limitation Act, with the result that their right to any debt quantified in a certificate of costs obtained at the end of the assessment process had been extinguished. The plaintiff filed a notice of motion seeking a declaration to that effect on 26 February 2015. The parties subsequently filed points of claim and defence in relation to the limitation issues raised in that notice of motion. [95]
  95. Exhibit 7, paragraphs 152–163 (Court Book, pages 1499–1503); Court Book, pages 50–52; 2017 judgment at [222]–[233].
12. The 26 February 2015 notice of motion also sought the following additional relief in the event that the Court made the declaration sought: [96]
  96. Court Book, pages 50–52.
1. an order that the defendants pay the plaintiff’s costs of the 1993 proceeding from its commencement until the date of filing the notice of motion;
2. an order that the defendants pay the plaintiff interest on costs; and
3. “an order that the defendants return to the plaintiff copies of all files in which the defendants’ possession concerning matters in which M D Nikolaidis & Co acted for the plaintiff or one of his companies” (my emphasis).
1. I note that the defendants do not appear to have raised any objection to the plaintiff introducing a claim for an order for the return of all files in the 26 February 2015 notice of motion, notwithstanding that Barrett J had struck out that very claim in the 19 June 2009 statement of claim.
2. The limitation issues raised by the 26 February 2015 notice of motion were heard before Slattery J on various dates between 26 October 2015 and 20 September 2016. During the course of the hearing, his Honour made directions to facilitate the claim for declaratory relief and other claims that had been made by notice of motion being made in the proper manner by filing a fresh summons. The filing of that summons on 11 November 2015 (the 2015 summons) resulted in the commencement of a fresh proceeding which has subsequently travelled together with the 1993 proceeding (2015/331795, or the 2015 proceeding). [97]
  97. Court Book, pages 53–56; 2017 judgment at [234]–[237].
3. During the period in which judgment was reserved before Slattery J in the 2015 proceeding, the defendants applied for an assessment of their costs in relation to the costs orders made in the 1993 proceeding by Rein J on 1 October 2010 and by Black J on 16 September 2011 and the costs orders made by the Court of Appeal in 2012. Those costs were subsequently assessed and certificates of determination of costs were issued on 13 February 2017.
4. On 17 November 2017, Slattery J delivered his reasons for judgment in relation to the limitation issues raised by the 26 February 2015 notice of motion and the 2015 summons. His Honour held that the defendants’ cause of action in contract on MDN’s retainer and the bills of costs that were the subject of the 1993 proceeding had accrued in or about October 1992 and had been extinguished by s 63 of the Limitation Act because the defendants had not commenced an action prior to the 6 year period specified in s 14(1)(a) of that Act. The applications filed in compliance with the 25 July 1996 orders and in conformance with the requirements of the 1987 Act for an assessment of costs (as then applicable) did not constitute an “action” that was “brought on the cause of action” before the expiry of the 6 year limitation period. The 1993 proceeding had been brought by the plaintiffs, and was not an action on the defendants’ cause of action in contract. It would have been open to the defendants at an earlier time to file a cross-claim for legal fees pending the outcome of the costs assessment, but they had not done so. [98]
  98. 2017 judgment at [273]–[302].
5. The 2017 judgment did not address the plaintiff’s claims in the 2015 summons for the return of all files in the defendants’ possession, save that his Honour noted that it was unclear whether the plaintiff still pressed for that relief and stated that the Court would allow the parties an opportunity to see if they could agree on orders for the return of the files or some other mutual resolution of that issue. [99]
  99. 2017 judgment at [322].
6. Slattery J identified that there were issues as to costs that remained to be determined and noted that it was open to either party to apply for a special costs order and/or for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). [100] The 1993 proceeding and 2015 proceeding were stood over for a time to allow the parties to consider these issues.
  100. 2017 judgment at [309]–[324].
7. According to an email sent by the plaintiff’s solicitor to the Associate to Slattery J on 6 February 2018, the plaintiff “expressed interest in the return of his original files held by the defendant the subject of the proceedings” at a directions hearing before Slattery J on 8 December 2017 and “the defendant opposed returning the original files”. [101] In that same email, the plaintiff’s solicitor advised that “the plaintiff no longer seeks an order for return of his files”. [102]
  101. Court Book, page 1854.
  102. Court Book, page 1854.
8. In a subsequent directions hearing before Slattery J on 14 May 2018, his Honour enquired whether the parties had agreed on the terms of an order to dispose of the plaintiff’s claim for return of the files. Slattery J referred to the plaintiff’s previously communicated position that he no longer sought return of the files. Counsel for the plaintiff failed to unequivocally inform the Court whether that remained the plaintiff’s position. Slattery J stated that “pretty soon” the plaintiff would have to state his position in relation to the files irrevocably. [103]
  103. Transcript, 14 May 2018, page 2 (lines 43 – 50) – page 3 (lines 1 – 45) (at Court Book, pages 1843–1844).
9. At the 14 May 2018 directions hearing, the parties also informed his Honour that they were in the process of searching the court record of the 1993 proceeding to ascertain the costs orders that had been made prior to the 2017 judgment. [104] His Honour was also informed of the costs orders and determinations referred to at [97] above and that the plaintiffs had filed an appeal from those determinations in the Common Law Division of the Court. [105] That appeal had been commenced by summons seeking leave to appeal on 27 March 2018. I will refer to this as the 2018 proceeding.
  104. Transcript, 14 May 2018, pages 1 – 2 (at Court Book, pages 1842–1843).
  105. Transcript, 14 May 2018, page 8 (lines 35 – 42) and page 10 (lines 39 – 46) (at Court Book, pages 1849 and 1851).
10. His Honour made an order that the 2018 proceeding travel together with the 1993 proceeding and the 2015 proceeding and directed that the parties agree upon what costs orders had been made in the 1993 proceeding and 2015 proceeding (including stating any disagreement as to the extent and scope of those costs orders). The three sets of proceedings were listed before his Honour on 21 and 22 November 2018 for the hearing of what was described as “all … preliminary costs argument” excluding any application for a gross sum costs order. [106]
  106. Transcript, 14 May 2018, page 11 (lines 41–50) (at Court Book, pages 1852).
11. The plaintiff decided to apply for an order setting aside previous costs orders adverse to him as a preliminary step before applying for a gross sum costs order. [107] However, he did not take any steps to make that application until a few days before the hearing commencing on 21 November 2018, which had been fixed in May 2018. On 15 November 2018, the plaintiff filed a notice of motion in the 1993 proceeding which sought orders pursuant to UCPR rr 36.15 and/or 36.16(3) that “all costs orders made in the proceedings between 1993 and the present adverse to the plaintiff” be set aside. Paragraph 1(e) of the motion alleged that that each of the itemised bills of costs issued by the defendants in the 16 matters pursuant to the orders made by RS Hulme J on 9 November 1993 included:
  107. Transcript, 18 June 2020, page 15 (line 14) – page 16 (line 14).

In the circumstances, it is unnecessary to address the other issues raised by the defendants in the context of their submissions concerning UCPR r 36.15(1), including the defendants’ complaints about the deficiencies in the pleading and particulars of the alleged fraud. However, this should not be taken as an indication that those complaints lacked force. The plaintiff’s submission that any deficiency in the pleading or particulars of the alleged fraud could be overcome by the defendants and the Court trawling through the plaintiff’s evidence in order to discern the plaintiff’s case, or by requiring the plaintiff to provide particulars after filing the verified pleading, needs only to be stated in order to be rejected, particularly in circumstances where the plaintiff has already been afforded the time to prepare several alterations of the draft pleading.

Cause of action under UCPR r 36.16(3)

The defendants accepted that the Adverse Costs Orders neither determined any claim for relief or question of fact or law arising upon any claim for relief nor dismissed the whole or part of the 1993 proceeding. Accordingly, it was common ground between the parties that the Court has power under UCPR r 36.16(3) to set aside the Adverse Costs Orders.
I am inclined to accept the defendants’ submission that a single judge of this Court lacks power to set aside the Appeal Adverse Costs Orders. The Court of Appeal is part of the Supreme Court of New South Wales, as the plaintiff submitted. However, a Judge of the Court, who is not a Judge of Appeal, does not constitute the Court of Appeal and the plaintiff did not identify any provision of the Supreme Court Act 1970 (NSW) that has the effect of assigning to the Equity Division of the Court an application to set aside a previous order of the Court of Appeal. [190] However, given the very limited submissions that the parties made about this issue, I will address their remaining submissions as to the whether the plaintiff’s claim for an order under UCPR r 36.16(3) is manifestly groundless in relation to both the Appeal Adverse Costs Orders and the Adverse Costs Orders.
190. Supreme Court Act 1970 (NSW), ss 38–56.
The remaining question then is whether the plaintiff’s claim for an order under UCPR r 36.16(3) setting aside the Adverse Costs Orders and Appeal Adverse Costs Orders is so obviously untenable that it cannot possibly succeed, having regard to the principles applicable to the exercise of the power under r 36.16(3).
As I have referred to at [371] above, the plaintiff submitted that the principle to be applied by the Court in determining his claims to set aside the interlocutory Adverse Costs Orders and Appeal Adverse Costs Orders under UCPR r 36.16(3) would be the “overriding principle” that “the court should do whatever the interests of justice require in the particular circumstance of the case”. The defendants’ submitted that the power in r 36.16(3) must be exercised with great caution having regard to the importance of finality of judgments and orders, in a manner that gives effect to the overriding purpose in s 56 of the Civil Procedure Act and in accordance with the dictates of justice and the objects set out in ss 57–60 of that Act.
There is no real difference of substance between the parties’ submissions in this regard, as the provisions of ss 56–60 of the Civil Procedure Act necessarily inform what the interests of justice require in the circumstances of any particular case. Even before that Act commenced, the “overriding principle” on which the plaintiff relied was informed by the need for disputes to be determined in a just and efficient manner That is clear from judgment of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (Brimaud) from which the plaintiff extracted the “overriding principle”. In that case, his Honour said (at 46–47, emphasis added):

“The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process illustrated in such cases as Stephenson v Garrett [1891] 1 QB 677 and Hunter v Chief Constable, West Midlands Police [198 2] AC 529 ; [1981] 3 All ER 727 , and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing: see, for example s 75A(8) of the Supreme Court Act 1970 (NSW).

Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However, the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1 976) 9 ALR 325 ) and injunctions (or undertakings) made or given by agreement and without contest “until further order” (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164–5 ; Hutchinson v Nominal Defendant [1972] 1 NSW LR 443 at 447– 8 ; Chanel Ltd v F W Woolworth & Co [198 1] 1 All ER 745 ; [19 81] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177–8 ; 35 ALR 625 at 629– 30 ; Butt v Butt [1987] 1 W LR 1351 at 1 353 ; Gordano Building Contractors Ltd v Burgess [1988] 1 WL R 890 at 8 94.”

The plaintiff also relied on Bajrmovic v Calubaquib [2015] NSWCA 139 in which Emmett JA, with the concurrence of Leeming JA and Adamson J, said (at [40]–[41], citations omitted):

Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process.
It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained.”
1. Finally, the plaintiff referred to Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115, in which McColl JA said (at [168]–[169] and [199], citations omitted):
Because the preliminary discovery order was interlocutory, it created no res judicata, issue estoppel or any extension of either doctrine in the Henderson v Henderson sense. Accordingly, the primary judge (and the court generally) had jurisdiction to set it aside, vary or discharge it. However, that does not mean there was no constraint upon the court’s power to do so. Rather, the general rationale of the principles relating to res judicata and issue estoppel, being the private injustice and public undesirability of permitting the relitigation of matters already litigated once, also applies to reconsideration of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if that was not so.
The constrained approach courts take to permitting interlocutory orders to be revisited reflects the proposition that a court must remain in control of its interlocutory orders but, too, that a further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust.

…

In summary, accordingly, the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. That consideration also applies to a second interlocutory application concerning the same, or what is substantially the same, issue or an attempt by a litigant who has unsuccessfully resisted an interlocutory application to re-agitate the same question. However, in determining what the interests of justice require, the court will have regard, among other matters, to the nature of the first interlocutory application, the nature of the change in position and whether any matter relied upon to change the basis upon which the challenged earlier order was made, was open to be advanced at the earlier hearing.”
1. Ward JA said (at [292]):

“… I agree with McColl JA (at [199]) that the overriding principle governing the approach of the court to interlocutory applications is to do what the interests of justice require in the particular circumstances of the case (as was recognised by Emmett JA in Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139 at [40]–[41]). For that reason, had it been necessary to revisit the approach of the majority in Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80, I would have concluded that it was correct; and that the question whether there was an abuse of process by the newspaper in the present case in seeking a stay of the preliminary discovery orders was to be determined having regard to all the circumstances of the case, as well as to the case management principles mandated by ss 56–60 of the Civil Procedure Act 2005 (NSW) and the public interest in the finality of litigation.”

The defendants’ submissions emphasised that the plaintiff seeks to set aside the Adverse Costs Orders and Appeal Adverse Costs Orders without demonstrating any material change in circumstances since those orders were made.
I accept the plaintiff’s submission that on a final hearing of his application under UCPR r 36.16(3) the question to be determined by the Court would be whether the interests of justice require that any or all of the Adverse Costs Orders and Appeal Adverse Costs Orders be set aside in all the circumstances of the case.
The plaintiff submitted that the Court should not refuse leave to file the verified pleading unless his arguments that the interests of justice require the setting aside of the Adverse Costs Orders and Appeal Adverse Costs Orders in all the circumstances of this case are so obviously untenable that they cannot possibly succeed.
The plaintiff articulated a separate list of matters that he submitted were relevant to the interests of justice in relation to each of the three sets of claims relied on in support of the application under UCPR r 36.16(3) (noting that the Overcharging Claims and Dishonest Conduct Claims are also relied on in support of the application under r 36.15(1)).
In relation to the Dishonest Conduct Claims, the plaintiff submitted that:

Mr Leon Nikolaidis engaged in the wrongful conduct that is the subject of the Dishonest Conduct Claims. If he had not done so, there would have been available “well over $100,000” for MDN to apply to its legal costs in the 16 matters and the plaintiff would not have commenced the 1993 proceeding and the Adverse Costs Orders and Appeal Adverse Costs Orders would not have been made;

the plaintiff did not litigate the Dishonest Conduct Claims earlier because of his plan to obtain MDN’s legal files relating to the Preston entities, to which I have already referred at [286] above. He did not obtain access to those legal files during the inspection of the defendants’ records in 1994 for the purpose of the taking of an account in the 1993 proceeding. For the purpose of the taxation and assessment of costs in the 16 matters, he obtained access only to the legal files in those 16 matters;

the plaintiff raised the Dishonest Conduct Claims with Mr Leon Nikolaidis in correspondence prior to the commencement of the 1993 proceeding;

if the plaintiff had known earlier than January 2019 that MDN’s legal files relating to the Preston entities had been destroyed, he “may have litigated the Dishonest Conduct Claims at an earlier point in time, including in an argument in opposition to one or more of the previous adverse costs orders at the time a judge of the court was considering making the costs orders”;

the plaintiff has served evidence in support of the Dishonest Conduct Claims which, it was submitted, “is probative and identifies a prima facie case of dishonest conduct”;

the plaintiff ultimately succeeded in the 1993 proceeding by reason of the declaration made by Slattery J in November 2017. The plaintiff seeks to ventilate the question whether earlier interlocutory costs orders adverse to him can be set aside by a combination of his ultimate success in the 1993 proceeding and the fact that the 1993 proceeding “was originally caused by the wrongful conduct of Mr Nikolaidis the subject of the Dishonest Conduct Claims”; and

it would be unjust to the plaintiff if his claim for relief under UCPR r 36.16(3) is not heard and determined on its merits based on the Dishonest Conduct Claims.

In relation to the Overcharging Claims, the plaintiff submitted that:

if MDN had not overcharged the plaintiff for work in the five matters that are the subject of the Overcharging Claims, and if Mr Leon Nikolaidis had not engaged in the conduct that is the subject of the Dishonest Conduct Claims, there would have been available “well over $100,000” for MDN to apply to its legal costs in the 16 matters and the plaintiff would not have commenced the 1993 proceeding and the Adverse Costs Orders and Appeal Adverse Costs Orders would not have been made;

each of those five matters were the subject of the taxation and assessment processes ordered in the 1993 proceeding. The plaintiff was, in effect, litigating the Overcharging Claims in the 1993 proceeding until the costs assessment process “fell away” as a result of the declaration made by Slattery J in November 2017. The plaintiff did not raise the Overcharging Claims in opposition to the Adverse Costs Orders and Appeal Adverse Costs Orders at the time they were made because it would have been premature to do so before the outcome of the assessment was known. It would be unjust to the plaintiff if, having litigated the Overcharging Claims since 1993, he is not now “permitted to attempt to prove the matters in a legitimate application to set aside previous costs orders”. By contrast, there is no injustice to the defendants in permitting the plaintiff to rely on the Overcharging Claims in that manner because they had an opportunity since 1993 to prepare evidence in support of the fees charged since 1993;

the plaintiff has served evidence in support of the Overcharging Claims which, it was submitted, “is probative and identifies a prima facie case of dishonest conduct”;

the plaintiff ultimately succeeded in the 1993 proceeding by reason of the declaration made by Slattery J in November 2017. The plaintiff seeks to ventilate the question whether earlier interlocutory costs orders adverse to him can be set aside by a combination of his ultimate success in the 1993 proceeding and the fact that the 1993 proceeding “was originally caused by a combination of overcharging by the Firm in five matters and the wrongful conduct of Mr Nikolaidis the subject of the Dishonest Conduct Claims”; and

it would be unjust to the plaintiff if his claim for relief under UCPR r 36.16(3) is not heard and determined on its merits based on the Overcharging Claims.

The plaintiff submitted that “it is arguable that the interests of justice based on the DRAW Report Claims are weaker than the interests of justice in relation to the Dishonest Conduct Claims and the Overcharging Claims” because the DRAW Report Claims do not allege any wrongdoing against the defendants and there is a “notable degree of overlap” between the DRAW Report Claims and the taking of accounts in the 1993 proceeding. The plaintiff nevertheless submitted that his applications to set aside the Adverse Costs Orders and Appeal Adverse Costs Orders based on each of the Dishonest Conduct Claims, the Overcharging Claims and the DRAW Report Claims are arguable. As a “fall back position”, the plaintiff submitted that those applications based on the Dishonest Conduct Claims and Overcharging Claims only were arguable.
For present purposes, I will proceed on the assumption that the evidence relating to the Dishonest Conduct Claims and Overcharging Claims is of the calibre that the plaintiff asserts, and that the factual allegations the subject of the three categories of claims are not so obviously untenable that he could not possibly succeed in pressing them.
The remaining matters relied on by the plaintiff in relation to the Dishonest Conduct Claims do not reveal a tenable argument that could be raised at the final hearing that the interests of justice be in his favour. On the contrary, the second and third matters referred to at [388] above are reasons why the verified proceeding is an abuse of process: see [326]–[353] above. In relation to the fourth matter, the plaintiff had no proper basis to assume that MDN would retain all of its legal files while he took his time in conducting the 1993 proceeding in accordance with his plan, for the reasons I have explained at [345]–[346] above.

It does not follow from the plaintiff’s success in November 2017 that he interests of justice now favour allowing the plaintiff to ventilate the questions whether the Adverse Costs Orders and Appeal Adverse Costs orders can be set aside by reason of that success and the fact (if it were proved) that the 1993 proceedings was commenced as a result of the alleged conduct that is the subject of the Dishonest Conduct Claims and the Overcharging Claims.
For the reasons explained above, I do not consider that the plaintiff has a tenable argument that the interests of justice require the setting aside of the Adverse Costs Orders and Appeal Adverse Costs Orders on the basis of the DAW Report Claims.
My use of the phrase “tenable argument” above is intended to refer to an argument that is not so untenable or manifestly groundless that it could not possibly succeed.
For all of those reasons, it is my opinion that the plaintiff’s cause of action under UCPR r 36.16(3) cannot possibly succeed because neither the verified pleading nor the plaintiff’s submissions identify a basis on which it could possibly be said that the interests of justice in the circumstances of this case require that any or all of the Adverse Costs Orders or Appeal Adverse Costs Orders should be set aside.

Discretionary considerations

In all the circumstances of this case, I do not consider that there are any discretionary considerations that are relevant to the plaintiff’s application for leave to file the verified pleading that have not already been canvassed in considering the parties’ contentions concerning Anshun estoppel, abuse of process and the General Steel principles.

Conclusion and orders

For all of those reasons, the plaintiff has succeeded in his application to for leave to rely on the affidavits referred to in [191] above, but his application for leave to file the verified pleading fails and there will be an order dismissing prayer 1 of the notice of motion filed on 25 October 2019. There will also be orders dismissing the plaintiff’s notice of motion filed in the 1993 proceeding on 15 November 2018 (referred to at [105] above) and the points of claim filed on 29 June 2019 (referred to at [116] above), being the predecessors to the verified pleading.
There is no reason why the costs of and incidental to the Motion should not follow the event. I regard the costs associated with the predecessors to the verified pleading referred to immediately above as being costs incidental to the Motion. In substance, the event is that the plaintiff has failed in his application for leave to file the verified pleading. The application for leave to rely on the late served affidavits was not the subject of extensive evidence and occupied almost no time at the hearing of the Motion. I note that, in his written submissions served prior to the hearing of the Motion, the plaintiff acknowledged that “it appears difficult to resist an order that the plaintiff pay the defendants’ costs” if “the plaintiff loses on the Batistatos point”. The plaintiff has been unsuccessful on that point and others. Whilst the Court has not accepted every submission made by the defendants, there was a substantial degree of overlap between the evidence and submissions relevant to each issue raised and I do not regard this as a case that lends itself to an order which separates the costs outcome of the Motion according to issues.
In their written submissions served prior to the hearing of the Motion, the defendants submitted that the plaintiff should be ordered to pay their costs on an indemnity basis and an order that those costs be determined by the Court on a “fixed/lump sum basis” and by payable forthwith. I assume that the defendants were thereby foreshadowing an application under s 98(4)(c) of the Civil Procedure Act for an order awarding costs to the defendants in a specified gross sum instead of as assessed.
The plaintiff should have an opportunity to be heard, after studying these reasons for judgment, about whether he should be ordered to pay the defendants’ costs on an indemnity basis. The orders and directions that I will make will facilitate this. Whilst I have concluded that the plaintiff is to pay the defendants' costs of the Motion, I will defer making any order to the effect pending resolution of the questions whether these costs are to be paid on the indemnity basis or on the ordinary basis.
The directions will also facilitate the defendants making an application pursuant to s 98(4)(c) of the Civil Procedure Act.
In circumstances where the Court is yet to make orders concerning the costs of the remainder of the 1993 proceeding and 2015 proceeding (to the extent that those costs are not the subject of previous orders made during the course of those proceedings), I am not inclined at this stage to order the plaintiff to pay the defendants’ costs of the Motion forthwith, whether on an ordinary or indemnity basis and whether as agreed or assessed, in a gross sum specified by the Court. The directions and orders that I will make will also provide for the parties to take the steps necessary to facilitate the Court making a determination as to the costs of the 1993 and 2015 proceedings.
I make the following orders, directions and notations:

Proceeding 1993/23395

Grant leave to the plaintiff to rely on the following affidavits in support of his application in paragraph 1 of the notice of motion filed on 25 October 2019 (the Motion):

the affidavit of John Preston sworn on 20 August 2019;

the affidavit of John Preston sworn on 21 October 2019;

the affidavit of Ivy Zhao sworn on 19 August 2019; and

the affidavit of Ivy Zhao sworn on 28 October 2019.

Note that order 1 above disposes of paragraph 2 of the Motion.

Order that the Motion is otherwise dismissed, save for the question of the costs of and incidental to the Motion.

Order that the notice of motion filed by the plaintiff on 15 November 2018 is dismissed.

Order that the points of claim filed by the plaintiff on 28 June 2019 is dismissed.

Direct that, by close of business on 16 February 2021, the defendants shall file and serve written submissions relied on in support of their application that the plaintiff pay their costs of the Motion on the indemnity basis rather than on the ordinary basis, such submissions not to exceed four pages in length.

Direct that, by close of business on 23 February 2021, the plaintiff shall file and serve any written submissions relied on in opposition to an order that they pay the defendants’ costs of the Motion on the indemnity basis rather than on the ordinary basis, such submissions not to exceed four pages in length.

List the matter before Williams J at 9:00am on 5 March 2021 for directions to facilitate:

the preparation for hearing of the defendants’ foreshadowed application for an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in respect of the costs of the Motion;

the preparation for hearing of the plaintiff’s foreshadowed application for an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in relation to the costs of this proceeding and proceeding 2015/331795 (other than the costs of the Motion); and

any other directions or orders necessary to formally bring this proceeding and proceeding 2015/331795 to an end (subject to the questions of costs referred to (a) and (b) above).

Proceeding 2015/331795

Note the directions and orders made in proceeding 1993/23395 on this date.

List the matter before Williams J at 9:00am on 5 March 2021 for directions.

Proceeding 2018/96873

Note the directions and orders made in proceeding 1993/23395 on this date.

List the matter before Williams J at 9:00am on 5 March 2021 for directions.

**********

Endnotes

Decision last updated: 03 February 2021

Medium Neutral Citation:	Preston v Nikolaidis [2021] NSWSC 36
Hearing dates:	18 and 19 June 2020; further submissions received on 8 July 2020 and 28 September 2020
Date of orders:	2 February 2021
Decision date:	02 February 2021
Jurisdiction:	Equity - Applications List
Before:	Williams J
Decision:	Leave is granted to the plaintiff to rely on four affidavits in support of his application for leave to file a verified statement of claim dated 17 September 2019. However, leave to file that verified statement of claim is refused.
Catchwords:	PRACTICE AND PROCEDURE – application – in proceeding commenced in 1993, order made requiring plaintiff to obtain leave to file statement of claim seeking orders setting aside various costs orders made between 1995 and 2014 – whether the proposed pleading discloses a reasonable cause of action under Uniform Civil Procedure Rules 2005 (NSW), rr 36.15(1) and/or 36.16(3) JUDGMENTS AND ORDERS – res judicata – cause of action estoppel – issue estoppel – Anshun estoppel PRACTICE AND PROCEDURE – inherent jurisdiction – abuse of process
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 91 and 98 Crimes Act 1900 (NSW), s 300 Evidence Act 1995 (NSW), ss 136 and 191 Family Law Act 1975 (Cth), s 79 Legal Profession Act 1987 (NSW), s 208 Limitation Act 1969 (NSW), ss 14 and 63 Supreme Court Act 1970 (NSW), ss 38–56 Supreme Court Rules 1970 (NSW), Pt 40 r 8 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15 and 36.16
Cases Cited:	Bajrmovic v Calubaquib [2015] NSWCA 139 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Beck v Weinstock [2012] NSWCA 289 Bhagat v Smith [2000] NSWCA 89 Blair v Curran (1939) 62 CLR 464 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Champerslife Pty Ltd v Manojloviski (2010) 75 NSWLR 245; [2010] NSWCA 33 Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44 Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336 General Steel Industries Inc v Commissioner of Railways (1964) 112 CLR 125 James v Australia and New Zealand Banking Group Ltd (2020) 380 ALR 566; [2020] NSWCA 101 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Labracon Pty Ltd v Cuturich (2013) 17 BPR 32,497; [2013] NSWSC 97 Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177 Nominal Defendant v Cordin [2017] NSWCA 6 Preston v Nikolaidis [2010] NSWSC 66 Preston v Nikolaidis [2010] NSWSC 131 Preston v Nikolaidis [2010] NSWSC 427 Preston v Nikolaidis [2011] NSWSC 1074 Preston v Nikolaidis [2017] NSWSC 1527 Preston v Nikolaidis, Supreme Court of New South Wales, R S Hulme J, 28 February 1995, unreported Preston v Nikolaidis, Supreme Court of New South Wales, Young J, 25 July 1996, unreported Preston v Nikolaidis, Supreme Court of New South Wales, Master McLaughlin, 25 August 2000, unreported Rogers v The Queen (1994) 181 CLR 251 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 Williams v Spautz (1992) 174 CLR 509
Texts Cited:	K R Handley, Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis Butterworths, 2019)
Category:	Procedural rulings
Parties:	In proceeding 1993/23395: John Preston (First Plaintiff/Applicant) Western Suburbs Constructions Pty Ltd (formerly Preston Erections Pty Limited) (Second Plaintiff) Leon Nikolaidis in his capacity as the executor of the estate of the late Mitrofanis Demetrius Nikolaidis (First Defendant/First Respondent) Leon Nikolaidis trading as M.D. Nikolaidis & Co (Second Defendant/Second Respondent) Michael Zwar (Third Defendant/Third Respondent) In proceedings 2015/331795 and 2018/96873: John Preston (Plaintiff) Leon Nikolaidis (First Defendant) Michael Zwar (Second Defendant)
Representation:	In proceeding 1993/23395: Counsel: Mr B Zipser (First Plaintiff/Applicant) Mr T S Hale SC with Mr J Svehla (Defendants/Respondents) Solicitors: Livingstone & Company Lawyers (First Plaintiff/Applicant) Diamond Conway Lawyers (Defendants/Respondents) In proceedings 2015/331795 and 2018/96873: Counsel: Mr B Zipser (Plaintiff/) Mr T S Hale SC with Mr J Svehla (Defendants) Solicitors: Livingstone & Company Lawyers (Plaintiff) Diamond Conway Lawyers (Defendants)
File Number(s):	1993/23395; 2015/331795; 2018/96873
Publication restriction:	N/A