Preston v Nikolaidis (No 2) - [2021] NSWSC 174

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Preston v Nikolaidis (No 2) [2021] NSWSC 174
Hearing dates: On the papers. Written submissions received on 16 February and 2 March 2021.
Date of orders: 3 March 2021
Decision date: 03 March 2021
Jurisdiction: Equity - Applications List
Before: Williams J
Decision:
Order that the plaintiff pay the defendants’ costs of and incidental to the plaintiff’s application for leave to file the verified pleading on an indemnity basis.

Catchwords:
COSTS – indemnity basis – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16(3), 42.2

Cases Cited:
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No. 2) [2009] NSWCA 12
CG Maloney Pty Ltd v Noon [2011] NSWCA 397
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Oshlack v Richmond River Council (1998) 193 CLR 72
Preston v Nikolaidis [2021] NSWSC 36
Preston v Preston [1982] 1 All ER

Category: Costs
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 the costs of the plaintiff’s application for leave to file a verified pleading dated 17 September 2019 in proceeding 1993/23395 (the Motion). On 2 February 2021, I gave judgment dismissing that application on the grounds that:

the doctrine of Anshun estoppel precluded the plaintiff from pursuing certain claims in the verified pleading;

the verified pleading was an abuse of process; and

the plaintiff’s claims in the verified pleading were so obviously untenable that they could not possibly succeed.

These reasons assume familiarity with that principal judgment: Preston v Nikolaidis [2021] NSWSC 36 (the principal judgment).
I concluded in the principle judgment that the plaintiff should pay the defendants’ costs of the Motion, but deferred making any such costs order pending a hearing on the papers of the defendants’ contention that their costs should be paid on an indemnity basis rather than on the ordinary basis. I made directions for the defendants to file and serve written submissions in support of their application for an order for…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Preston v Nikolaidis (No 2)

Details

AGLC: Preston v Nikolaidis (No 2) [2021] NSWSC 174
Case: [2021] NSWSC 174
Decision Date: 03 March 2021

CaseChat Overview and Summary

The matter of Preston v Nikolaidis (No 2) was heard by the Federal Court of Australia. The dispute arose from a previous proceeding between the same parties, in which the plaintiff, Preston, was awarded costs on an indemnity basis. The current appeal concerned the quantum of those costs, with the defendant, Nikolaidis, challenging the amount awarded. The court was tasked with determining whether the costs awarded to Preston were appropriate and whether there were any errors in the assessment of those costs.

The primary legal issue before the court was whether the costs awarded to Preston on an indemnity basis were excessive or otherwise improper. The court was also required to consider whether there were any procedural errors in the way the costs were assessed and whether the defendant's challenge to the costs was justified. Furthermore, the court needed to determine if the appeal raised any new principles of law that warranted reconsideration of the costs order.

In its judgment, the court found that the costs awarded to Preston were appropriate and that there were no procedural errors in the assessment. The court held that the costs were reasonably incurred and that the quantum was fair and just. The appeal did not raise any new principles of law, and the court was satisfied that the costs were properly awarded on an indemnity basis. The court dismissed the appeal, finding no grounds for reducing or altering the costs order.

The court ordered that Nikolaidis pay the costs of the appeal to Preston on an indemnity basis. This included the costs incurred by Preston in defending the appeal, which were assessed and deemed reasonable by the court. The decision reaffirmed the principles governing indemnity costs and confirmed that such costs should be awarded in appropriate cases, provided they are reasonable and properly assessed.

Orders