Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Preston v Nikolaidis [2012] NSWCA 198
• Hearing dates: 21 June 2012
• Decision date: 21 June 2012
• Before: Macfarlan JA at [1]; [12]; Meagher JA at [11]

Decision

The summons for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - summons seeking leave to appeal - appeal against primary judge's findings rather than orders not permissible; COSTS - assessment process - what objections may be raised
• Cases Cited: Doyle v Hall Chadwick [2007] NSWCA 159
• Category: Principal judgment
• Parties: John Clement Preston (Applicant); Leon Nikolaidis (First Respondent); Doreen Nikolaidis in her capacity as executrix of the estate of the late Mitrofanis Nikolaidis (Second Respondent); Michael Zwar (Third Respondent)
• Representation: Counsel: B Zipser (Applicant); J T Svehla (Respondents); Solicitors: Livingstone & Company Lawyers (Applicant); Diamond Conway Lawyers (Respondents)
• File Number(s): CA 1993/23395

Decision under appeal

• Citation: John Clement Preston & Anor v Leon Nikolaidis t/as MD Nikolaidis & Co [2011] NSWSC 1074
• Date of Decision: 2011-09-13 00:00:00
• Before: Black J
• File Number(s): SC 93/23395

Judgment

1 MACFARLAN JA: This is an application for leave to appeal against parts of a judgment of Black J of 13 September 2011 ([2011] NSWSC 1074). The proceedings have a history extending back to 1993 which is sufficiently described in his Honour's judgment.

2 The Amended Summons Seeking Leave To Appeal describes as follows the parts of Black J's judgment from which the applicant seeks leave to appeal:

"a) The order made by Black J on 16 September 2011 to direct the Manager, Costs Assessment to refer to an accredited costs assessor the defendant's bills of costs for assessment ('the Order'); and

b) The findings in paragraphs 44 and 45 of the decision dated 13 September 2011 in support of the Order".

3 The applicant submits that he is precluded by the primary judge's decision from raising in the assessment process what the applicant describes as his "Fabricated Document Contention" and his "Already Paid Contention". The former does not invoke an assertion that the respondents have fabricated any documents to support their fee claims. The applicant in fact concedes that he has no evidence that that occurred. Rather, it is a submission that the applicant anticipates that he might have to make in the course of the assessment by the Costs Assessor, depending on what documents are relied upon by the respondents to support their fee claims.

4 Similarly the "Already Paid Contention" does not invoke an assertion that specific fee claims have been paid. Rather, it is a submission that the applicant anticipates that he might have to make if the respondent seeks to justify any fee claim the subject of assessment by relying on work done which was already charged for in bills paid by the applicant.

5 The possibility that the applicant might want to make these contentions in the assessment process was not a reason why the applicant complained that the order to refer the respondents' bills for assessment should not have been made. The possibility is entirely consistent with the making of the order.

6 The gravamen of the applicant's complaint is his Honour's observation that the "Fabricated Document Contention" cannot be raised before the Costs Assessor and what the applicant appears to have erroneously interpreted as an observation that the "Already Paid Contention" could not be raised there either. Black J did not in fact make the latter observation: he expressly declined to express a view on the point (Judgment [45]).

7 In these circumstances the application for leave to appeal must be dismissed because appeals may only be brought against orders. An appeal does not lie in a case, such as the present, where the only relevant order is unimpeachable and only the judge's observations or reasoning are challenged.

8 I add that I should not be taken to have agreed with the primary judge's observation concerning the "Fabricated Documents Contention". As the point was not the subject of full argument, I refrain from expressing any concluded view on it. However the proposition appears to be inconsistent with the decision of this Court in Doyle v Hall Chadwick [2007] NSWCA 159 (at [61] - [62] per Hodgson JA with Mason P and Campbell JA agreeing) and with the earlier decisions referred to there.

9 That Contention and the "Already Paid Contention" cannot be dealt with now because, as the applicant's submissions recognise, the Contentions are at this stage entirely speculative and the occasion for their making may or may not arise. It is possible that if they are made in the assessment process in relation to specific documents or items of work, the respondents might argue that the applicant is precluded from making the Contentions by some aspect of his conduct in the long-running court proceedings. However, the fact that, in accordance with the applicant's submissions, such contentions will only be made in respect of matters of which he is presently unaware renders it unlikely that such a response would be successful. Nevertheless the merits of such arguments will remain for the assessor to determine, subject to rights of review and appeal.

10 For these reasons, I propose that the summons for leave to appeal be dismissed with costs.

11 MEAGHER JA: I agree with Justice Macfarlan's proposed order for the reasons he gives.

12 MACFARLAN JA: The order of the Court therefore is that the summons for leave to appeal is dismissed with costs.

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Decision last updated: 28 June 2012