John Clement Preston & Anor v Leon Nikolaidis t/as MD Nikolaidis & Co

Judgment 1It is first necessary to identify the matters that are now before me. On 9 May 2011, Bergin CJ in Eq listed this matter for hearing on 24-26 August 2011 and also referred the matter to mediation which her Honour directed occur no later than 1 July 2011. Her Honour made those directions in circumstances that it was common ground before her that the remaining issue to be decided by the Court was the hourly rates which were to be applied by a costs assessor in assessing bills rendered by the Defendants to the Plaintiff, Mr Preston, and companies associated with him. 2Prior to the hearing date, the proceedings were restored before me and I was advised that the parties had reached agreement at the mediation as to the hourly rates which were to be applied in the costs assessment, being the issue to which I referred in paragraph 1 above. I was also advised that Mr Preston and the Second Plaintiff, Western Suburbs Constructions Pty Limited (formerly Preston Erections Pty Limited) ("Western Suburbs Constructions") wished to have determined an issue as to whether Mr Preston was personally liable under the bills rendered by the Defendants ("the Preston Liability issue"). Mr Preston contends that he is personally liable to pay the accounts rendered by the Defendants in two matters but is not personally liable to pay those accounts in the remaining matters. The Defendants contend that it is not open to the Plaintiffs to raise that issue, having regard to the orders which had previously been made in the proceedings. The Plaintiffs indicated that they could, with difficulty, prepare their evidence in respect of that issue so that it could be heard on the dates allocated before me. The Defendants indicated that they would not be in a position to file their evidence as to that issue by those dates. 3The hearing proceeded before me on 25-26 August 2011 for the primary purpose of determining whether the Preston Liability issue was presently open in the proceedings. The Plaintiffs did not make any application before me for leave to amend the Summons originally filed in these proceedings on 24 August 1993 to raise the Preston Liability issue as a new issue in the proceedings. Accordingly, unless that matter was already in issue in the proceedings prior to the commencement of the hearing before me, then it is not now in issue in these proceedings. 4I directed the parties file written submissions and, in their written submissions, the Plaintiffs also identified a further issue as to whether the question of the quantum of costs payable should now be referred to a referee rather than to a costs assessor so that the Plaintiffs could agitate a number of further matters before the referee. History of the proceedings 5I should first indicate something of the history of the proceedings although I do so in a summary way since that history has been comprehensively reviewed in the judgment of Barrett J in Preston v Nikolaidis [2010] NSWSC 131 ("2010 judgment"). I gratefully adopt his Honour's comprehensive review of that history. 6On 24 August 1993, the proceedings were commenced by Summons filed by Mr Preston as Plaintiff and Western Suburbs Constructions as Second Plaintiff. Relevantly, the Summons provided: "The Plaintiff claims: