Preston v Nikolaidis

The parties in this matter were Preston and Nikolaidis. The dispute concerned an appeal against a primary judge's findings, rather than the orders made by that judge. The appeal was heard in the Court of Appeal of New South Wales by Macfarlan and Meagher JJA.

The central legal issue before the Court of Appeal was whether it was permissible to appeal a primary judge's findings of fact or law in circumstances where the appeal was not directed against the orders made by the primary judge. The Court also considered the scope of objections that may be raised during the assessment process for costs.

The Court of Appeal determined that an appeal must be against the orders of the primary judge, not merely against the findings that underpinned those orders. The Court referred to the Uniform Civil Procedure Rules 2005, particularly Rules 36.15, 36.16, 36.17, and 36.18, which govern the setting aside and variation of judgments and orders, and noted the time limit for such applications. The Court found that the summons for leave to appeal was misconceived as it sought to appeal findings rather than orders.

Consequently, the summons for leave to appeal was dismissed with costs.