//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 1187
Supreme Court of NSW
2026-09-29
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Calokerinos v Madison Marcus Law Firm Pty Ltd [2026] NSWSC 1187
Hearing dates: 29 September 2026
Date of orders: 29 September 2026
Decision date: 29 September 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. The summons filed on 20 March 2026 is dismissed.
2. The applicant on the summons is to pay the respondent’s costs of the summons, but those costs not to be payable until completion of the proceedings in the District Court.
Catchwords: CIVIL PROCEDURE — application to transfer District Court claim and cross-claim to Supreme Court under s 140 of the Civil Procedure Act 2005 (NSW) — where amount of cross-claim barely over the monetary jurisdictional limit — where set-off of claims likely to bring cross-claim within jurisdictional limit — not established that transfer necessary to resolve the dispute — where parties had not considered consent to an extended jurisdiction in the District Court — transfer refused — had transfer been allowed then separating the claims as requested would not be consistent with the overriding purpose in s 56 of the Civil Procedure Act
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 100, 140(1)
District Court Act 1973 (NSW), s 44
Category: Procedural rulings
Parties: Cleopatra Sclavos Calokerinos (Plaintiff)
Madison Marcus Law Firm Pty Ltd (Defendant)
Representation: Counsel:
J Abednego (Plaintiff)
L White (Defendant)
Solicitors:
LXO Legal (Plaintiff)
Gilchrist Connell (Defendant)
File Number(s): 2026/115036
Publication restriction: No
The matter before me is a summons filed on 20 March 2026, requesting the transfer of District Court proceedings to this court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). The summons was filed by the defendant in the District Court case, but she is the plaintiff in this court.
For convenience I will refer to the plaintiff in the summons as Ms Calokerinos and the defendant as the Law Firm.
The Law Firm acted for Ms Calokerinos in relation to the estate of the late George Sclavos. The Law Firm commenced proceedings in the District Court on 7 May 2025, claiming legal costs in the sum $169,976.61 plus interest and costs. The legal costs relate to the retainer held by the Law Firm in the estate matter.
On 18 August 2026, Ms Calokerinos filed a cross-claim in the District Court in which she seeks damages for breach of contract and professional negligence totalling about $1.287 million. The jurisdiction of the District Court is $1,250,000. The parties may consent to extended jurisdiction, but that has not happened in the present matter.
The Law Firm consents to the transfer but wishes to have orders changing the respective positions of the parties. Normally, if a case is transferred from the District Court to the Supreme Court following transfer, the plaintiff will still be the plaintiff, and the defendant will still be the defendant.
The Law Firm says that it should be a condition of the transfer that Ms Calokerinos plead her cross-claim as a statement of claim, which should then be heard separately to the Law Firms’ claim for legal fees. This is opposed by the plaintiff who says the proceedings should maintain their District Court structure.
Section 140(1) of the Civil Procedure Act states:
“The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.”
The decision to transfer a matter to this court is discretionary. There are some notable features about this application:
The amount of the cross-claim only exceeds the District Court’s jurisdictional limit by about $37,000. The Law Firms’ claim is for $169,976.61. Part of this claim has been conceded which could well, after a set off, assuming Ms Calokerinos is totally successful on the cross-claim, bring the final judgment sum under the District Court limit.
If Ms Calokerinos succeeds and is entitled to interest under s 100 of the Civil Procedure Act, so that the jurisdictional limit is exceeded, that will not prevent the awarding of the exceeding amount. This is stipulated by s 44(2) of the District Court Act 1973 (NSW).
The District Court Act provides for a memorandum of consent to be filed which will extinguish the monetary jurisdiction of the court. Ms Calokerinos, it would appear, has not explored this possibility.
The main reason that Ms Calokerinos said a transfer was needed is included in paragraphs 26 and 27 of the affidavit of her solicitor, Mr Luis Ormazabal, dated 20 March 2026. In these paragraphs he says that the cross-claim “involves complex legal issues involving professional negligence, the application of advocates immunity, tax law, and equity” and that Ms Calokerinos has been involved in separate Supreme Court proceedings (to do with the estate) so that a transfer “would ensure finality to the litigation in circumstances where the parties have been attempting to resolve the dispute for several years prior to the Defendant filing its Statement of Claim.”
Complex cases of the type described by Mr Ormazabal are often heard in the District Court, and I simply do not understand how a transfer would help to resolve the dispute. Presumably, if the parties are so inclined, they can resolve their differences whether the case is in the District Court or the Supreme Court. As to the fact that there are published cases in the Supreme Court, I see no significance. Those decisions can be referred to in the normal manner, regardless of the Court in which the proceedings are being heard.
One matter that has concerned me is the equity component of the cross-claim. I specifically asked counsel for Ms Calokerinos if he knew the break-up of the claim and in particular, the equity component. This is because the equity jurisdiction in the District Court is $100,000. Learned counsel told me that almost all of the claim is for breach of contract and loss of chance so I do not think the equity part makes a difference.
In my view this is a case that should not be transferred to this Court, and certainly not until the Law Firm has been asked whether or not it consents to an extended jurisdiction in the District Court. Added to this factor is the real possibility that any excess over the District Court’s jurisdiction is likely to be set off by the Law Firm’s claim for legal costs, in whole or in part.
I intend therefore to dismiss the summons.
Accordingly, I do not need to deal with the Law Firm’s request for a separation of the respective claims. Had I done so, I would not have acceded to the request. It would result in a duplication of issues and the possible prolonging of any hearing. It would certainly not be consistent with s 56 of the Civil Procedure Act.
I make the following orders:
The summons filed on 20 March 2026 is dismissed.
The applicant on the summons is to pay the respondent’s costs of the summons, but those costs are not to be payable until completion of the proceedings in the District Court.
**********
Calokerinos
Madison Marcus Law Firm Pty Ltd