Preston v Nikolaidis & Ors

Judgment 1Ex tempore: This matter has had a rather unprepossessing history to say the least. The applicant, Mr Preston, has sought leave to appeal from part of a decision adverse to his interests, that decision having been stated in the judgment of Black J on 16 September 2011. Those proceedings, which I shall call the current proceedings, were between the applicant and his former solicitors. Their progeny lay in litigation commenced as long ago as 1993, so far as I can ascertain from my rather hurried reading of the papers. They were proceedings in which the applicant had sought orders against the former solicitors seeking the following relief: firstly, for the delivery of bills of costs in relation to certain matters; secondly, orders that the bills be referred for taxation; thirdly, orders for delivery up of the applicant's documents in relation to some four specified matters, and fourthly, an order for the taking of accounts. 2On 9 November 1993, R.S. Hulme J made orders as sought for delivery of bills of costs in taxable form. On 16 December 1993, R.S. Hulme J made orders referring the bills of costs for taxation. On 28 February 1995, after the conclusion of a number of earlier preliminary skirmishes, R.S. Hulme J finally disposed of the proceedings. He made orders for costs. He confirmed orders made previously, and then dismissed the summons. In circumstances unnecessary to detail for the purposes of the present motion, there was a subsequent judgment given by Young J, as he then was, on 25 July 1996. This required the proper officer of the Court to refer the defendant's bill of costs for assessment. There were then a series of motions in which amendments were sought to pleadings all of which, put briefly, appear to have been attempts by the applicant to re-litigate the issue as to whether he was personally liable to pay the costs in the various bills of costs. Such a claim, it was argued, was quite inconsistent with the stance he had taken in the proceedings before R.S. Hulme J and inconsistent in any event with the outcome of those proceedings. 3The current proceedings were heard following the striking out by Barrett J in 2010 of two further attempts by the applicant to restate his claim. Once again, these new pleadings endeavoured to set up a case that entities other than the plaintiff had been intended by the terms of the original retainer to be responsible for the payment of the costs. There were other proceedings as well but I do not propose to go through all of them. They included, however, a successful mediation on the issue of fraud in relation to the retainer. In any event, in the proceedings that were ultimately determined by Black J ([2009] NSWSC 1074), his Honour, having heard the matter on 25 and 26 August 2011, published his decision and reasons on 13 September 2011. The judgment is, it seems, a thorough and comprehensive one that outlines in much more detail than I have the rather unfortunate history of this lengthy piece of litigation. 4As I see it, Black J was required to determine three matters essentially. First, he had to determine whether the plaintiff was estopped or otherwise bound by res judicata so as to preclude him from now maintaining that he was not the person liable to pay the relevant legal costs. Black J held that the various judgments of R.S. Hulme J, together with his consequential orders, were to be treated as determining all matters which were necessary to be decided in the original contest between the applicant and his former solicitors. Consequently, his Honour determined that the applicant was not entitled to re-agitate the liability issue. Indeed, he went so far as to foreshadow that the claim, on one view of it, might properly be regarded as an abuse of process. Secondly, Black J had to determine whether there were admissions as to liability made by the applicant. His Honour found adversely to the applicant on this issue and refused leave for the admissions to be withdrawn. The third matter for his Honour's determination is the issue that is sought to be raised in the present leave application to this Court. The relevant paragraphs in his Honour's decision were [42] to [45]. I shall set them out as follows: "42. The Plaintiffs submitted that directions should be made to allow them to prepare and serve further evidence as to the Preston Liability issue. For the reasons set out above, I have concluded that question has already been determined by the Court adversely to Mr Preston and, alternatively, Mr Preston should not be granted leave to withdraw the admission which he necessarily made as to that liability in invoking the Court's jurisdiction under LPA ss 199-200. For this reason, no question as to directions for the filing of further evidence by any party in respect of that question arises. 43. Mr Preston also submits that, rather than the matter being referred to a costs assessor, it should now be referred to a referee under UCPR Pt 20 Div 3. Mr Preston indicates that he wishes to advance several submissions to such a referee. 44. First, Mr Preston wishes to contend that, following the termination of the retainer between the parties in October 1992, the Defendants may have created documents and placed them in the relevant files in order to provide evidence of work claimed to have been done but which was not in fact done. That is not a matter which is presently raised in these proceedings and, indeed, it appears to be a matter which Mr Preston sought to raise in the Further Amended Summons which Barrett J declined leave to file. Since that matter is not presently in issue, I would not refer it to a referee who would have no jurisdiction to determine it. I also do not consider that that matter could properly be raised before a costs assessor, since it is an allegation which would require investigation by curial processes which are not available to a costs assessor: Doyle v Hall Chadwick [2007] NSWCA 159. The consequence is that, in my view, it is not now open to Mr Preston to pursue this matter. 45. Mr Preston contends that he has already paid for work done prior to 1991. I express no view as to whether this is a matter which can be determined by a costs assessor, and it is possible that it is a matter which would instead arise in respect of any enforcement of a judgment arising from the costs assessment. This is not a matter which is presently in issue in these proceedings and there is therefore no basis for it to be referred to a referee. Mr Preston also indicates that he wishes to make a submission that the Defendants must prepare amended Bills of Costs. This matter, if it arises at all, should properly be addressed during the assessment process." 5As can be seen from those paragraphs, essentially his Honour took the view that the particular matter raised in paragraph 44 was not a matter which had been raised in the proceedings. It appeared to his Honour that it was the very matter which Mr Preston had earlier sought to raise in his Further Amended Summons which Barrett J had declined permission to file. Consequently, his Honour thought that it was simply not open to the applicant to pursue the particular matter. 6The applicant has filed an Amended Summons seeking leave to appeal. In that document, leave to appeal from part of the decision of Black J is sought in relation to: "(a) the order made by Black J on 16 September 2011 to direct the manager of costs assessment [sic] to refer to an accredited costs assessor the defendant's bill of costs for assessment (the order) and; (b) the findings in para 44 and 45 of the decision dated 13 September 2011." 7The amended draft Notice of Appeal raises the same two matters. In place of the particular finding and orders covered by para 42 of Black J's decision, the applicant seeks the following orders and consequential relief: "It is open to the appellant to contend that following the termination of the retainer between the parties in October 1992 the respondent may have created documents and placed them in the relevant files in order to provide evidence of work claimed to have been done but which was not in fact done."