Preston v Nikolaidis [2010] NSWSC 427

Preston v Nikolaidis [2010] NSWSC 427

Mr Zwar should have been a party from the outset because the plaintiff must be taken to have intended to sue all three members of the solicitors' firm, and s 65(2)(b), with s 64(1)(b), supported leave to amend the summons to add him as a defendant. Leave to add damages and equitable compensation claims was refused because the amendments were not necessary to determine the real questions in the proceedings, were raised without adequate explanation many years after they could have been raised, would add new factual dimensions after recollections had faded, and would be inconsistent with case management principles. Because each side had appreciable success and failure on the motions, costs...

Jurisdiction
Australia
Judgment Date
11 May 2010
Procedural Posture
Equity Division Proceedings Concerning the Terms of a Solicitors' Retainer and Disputed Costs / Determination of Applications for Amendment, Joinder and Costs Following Preston V Nikolaidis [2010] NSWSC 131
Outcome
Leave granted to amend the summons to add Michael John Zwar as a defendant; plaintiff's notice of motion filed on 30 March 2010 dismissed; no order as to costs; proceedings listed for directions.
Legal Topics
['amendment of Summons' 'joinder of Defendant' 'mistake in Name of Party' 'case Management' "solicitors' Retainer" 'costs Assessment' 'delay']
['civil Procedure' 'equity' 'legal Costs'] ['amendment of Summons' 'joinder of Defendant' 'mistake in Name of Party' 'case Management' "solicitors' Retainer" 'costs Assessment' 'delay']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning the Terms of a Solicitors' Retainer and Disputed Costs / Determination of Applications for Amendment, Joinder and Costs Following Preston V Nikolaidis [2010] NSWSC 131

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to amend the summons to add Michael John Zwar as a defendant despite Mr Zwar not having been formally joined earlier.' 'Whether the plaintiff should have leave to file an amended statement of claim adding claims for damages and equitable compensation.' "What costs order should be made in relation to the defendants' notice of motion and the plaintiff's notice of motion."]

Ratio Decidendi

Mr Zwar should have been a party from the outset because the plaintiff must be taken to have intended to sue all three members of the solicitors' firm, and s 65(2)(b), with s 64(1)(b), supported leave to amend the summons to add him as a defendant. Leave to add damages and equitable compensation claims was refused because the amendments were not necessary to determine the real questions in the proceedings, were raised without adequate explanation many years after they could have been raised, would add new factual dimensions after recollections had faded, and would be inconsistent with case management principles. Because each side had appreciable success and failure on the motions, costs...

Court Disposition

Leave granted to amend the summons to add Michael John Zwar as a defendant; plaintiff's notice of motion filed on 30 March 2010 dismissed; no order as to costs; proceedings listed for directions.

Orders

  • ['Order pursuant to s 64(1)(b) and s 65(2)(b) of the Civil Procedure Act 2005 that the plaintiff have leave to amend the summons filed on 24 August 1993 by adding Michael John Zwar as a defendant.' "Order that the plaintiff's notice of motion filed on 30 March 2010 be dismissed." "Order that there be no order as to...