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Preston v Nikolaidis

Preston v Nikolaidis

Case [2017] NSWSC 1527 17 November 2017

Limitation Periods

Costs

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Preston v Nikolaidis [2017] NSWSC 1527
Hearing dates: 26, 27, 28 October 2015, 25 Nov 2015, 17 December 2015, 29 February 2016, 5 April and 5 May 2016, 29 August 2016, 20 September 2016
Date of orders: 17 November 2017
Decision date: 17 November 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Declarations sought made. Claims on defendants’ bills of costs extinguished as relevant limitation period has expired. Directions made to deal with remaining issues.

Catchwords:
LIMITATION OF ACTIONS – retainer – claim for payment of legal fees – whether claim extinguished under Limitation Act 1969, s 63 - whether proceedings for recovery of fees brought by solicitor – whether client pleaded the limitation issue – whether client estopped from relying on limitation issue.
COSTS – solicitor/client – recovery – bill of costs – whether solicitor provided bill of costs – whether bill of costs sent for assessment – whether assessment is an “action” for the purposes of the Limitation Act.
Legislation Cited: Civil Procedure Act 2005, ss 60, 98(4)(c)
Crimes Act 1900 (NSW), s 300(1)
Legal Profession Act 1987 (NSW), ss 199, 200, 203, 206(1), 208, Part 11
Legal Profession Act 2004 (NSW)
Legal Profession Reform Act 1993 No. 87 (NSW), Part 11
Legal Profession Regulation 1994 (NSW), Part 9, Division 3, clause 38(3)
Limitation Act 1969, ss 14(1), 63
Supreme Court Rules 1970 (NSW), Part 72 r 8, Part 52, Division 7
Uniform Civil Procedure Rules, r 42.4
Cases Cited: Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
Camillo Tank SS Co Ltd v Alexandria Engineering Works (1922) 38 TLR 134
Coshott v Barry and Anor [2012] NSWSC 850
Hamod v New South Wales [2011] NSWCA 375
Lownds v Home Office [2002] 4 All ER 775
Nikolaidis v R [2008] NSWCCA 323
Nudd v Mannix [2009] NSWCA 327
Rogers v The Queen (1994) 1 CLR 251
Sherborne Estate (No. 2): Vanvalen v Neaves (2005) 65 NSWLR 268
Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6
Category: Principal judgment
Parties:
In proceedings1993/23395:

First Plaintiff: John Preston
Second Plaintiff: Western Suburbs Constructions Pty Limited (formerly Preston Erections Pty Limited)
First Defendant: Leon Nikolaidis as the executor of the estate of the late Mitrofanis Demetrius Nikolaidis
Second Defendant: Leon Nikolaidis trading as M.D. Nikolaidis & Co
Third Defendant: Michael Zwar
In proceedings 2015/331795:
Plaintiff: John Preston
First Defendant: Leon Nikolaidis
Second Defendant: Michael Zwar
Representation:
In proceedings1993/23395:

Counsel:
Plaintiffs: Ben Zipser
Defendants: Julian Svehla

In proceedings1993/23395:

Solicitors:
Plaintiffs: Duncan McIntyre, Madgwicks Solicitors
Defendants: Mitrofanis Nikolaidis, M.D. Nikolaidis & Co Solicitors

In proceedings 2015/331795:

Counsel:
Plaintiff: Ben Zipser
Defendants: Julian Svehla

In proceedings 2015/331795:
Solicitors:
Plaintiff: George Anastasi, Livingstone & Company Lawyers
First, Second & Third Defendants: Michael Zwar, Diamond Conway Lawyers

File Number(s): 1993/23395; 2015/331795
Publication restriction: No

Judgment

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Preston v Nikolaidis

Details

AGLC: Preston v Nikolaidis [2017] NSWSC 1527
Case: [2017] NSWSC 1527
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of Preston v Nikolaidis involves a dispute between a solicitor and their client regarding the payment of legal fees. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the client's claim for legal fees was barred by the Limitation Act 1969, section 63, which provides for a limitation period for actions. The court was also required to determine whether the proceedings for recovery of fees were brought by the solicitor or the client, and whether the client was estopped from relying on the limitation issue.

The court examined the nature of the retainer between the solicitor and the client and whether the client had pleaded the limitation issue. The court considered whether the client was estopped from relying on the limitation issue and whether the solicitor had provided a bill of costs. The court also considered whether the bill of costs was sent for assessment and whether such assessment constituted an "action" for the purposes of the Limitation Act.

The court found that the client was not estopped from relying on the limitation issue and that the proceedings for recovery of fees were brought by the solicitor. The court held that the Limitation Act applied to the proceedings for recovery of fees and that the client's claim was extinguished under section 63. The court also found that the assessment of the bill of costs did not constitute an "action" for the purposes of the Limitation Act.

The court ordered that the client was not liable to pay the solicitor's fees and costs. The court also ordered that the solicitor was not entitled to recover the fees and costs from the client. The court further ordered that the bill of costs was not to be assessed.

Orders