Preston v M D Nikolaidis & Co [2003] NSWSC 72

Preston v M D Nikolaidis & Co [2003] NSWSC 72

The defendants should pay the $1092 costs thrown away by vacation of the February 2003 hearing because the defendants made the application to vacate and the matter would not have been set down if the stay had been sought earlier. However, no order should be made for immediate payment of the certified interlocutory costs because doing so would give effect to isolated items in a complex account before the balance, including cross-costs orders and any solicitor/client costs claim, was known, and would deprive the defendants of potential rights of set-off under the usual position in SCR Pt 52A, Rule 9. Any application for interest on the certified costs should be reserved until after judgment...

Jurisdiction
Australia
Judgment Date
17 February 2003
Procedural Posture
Equity Proceedings Concerning Solicitor/client Costs and Interlocutory Costs / Interlocutory Application
Outcome
Plaintiffs' application otherwise dismissed; defendants ordered to pay costs thrown away by the vacated hearing; plaintiffs reserved liberty to apply after judgment for interest on the certified costs; plaintiffs ordered to pay defendants' costs of the day's application.
Legal Topics
['interlocutory Costs Orders' 'payment of Costs Before Conclusion of Proceedings' 'set Off of Costs Orders' 'interest on Costs' 'stay of Enforcement' 'costs Thrown Away by Vacated Hearing']
['civil Procedure' 'costs'] ['interlocutory Costs Orders' 'payment of Costs Before Conclusion of Proceedings' 'set Off of Costs Orders' 'interest on Costs' 'stay of Enforcement' 'costs Thrown Away by Vacated Hearing']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Solicitor/client Costs and Interlocutory Costs / Interlocutory Application

Legal Issues

  1. 1 ['Whether the stay on enforcement of the costs certificate ordered by Young J in July 1996 should be lifted and the defendants ordered to pay the certified costs plus interest within 28 days.' 'Whether the defendants should pay the costs thrown away by the vacation of the 2003 hearing date.' 'Whether interlocutory costs should be payable before conclusion of the proceedings despite SCR Pt 52A, Rule 9.' 'Whether interest should run on the amount of costs certified by Mr Hattersley before judgment in the principal proceedings.']

Ratio Decidendi

The defendants should pay the $1092 costs thrown away by vacation of the February 2003 hearing because the defendants made the application to vacate and the matter would not have been set down if the stay had been sought earlier. However, no order should be made for immediate payment of the certified interlocutory costs because doing so would give effect to isolated items in a complex account before the balance, including cross-costs orders and any solicitor/client costs claim, was known, and would deprive the defendants of potential rights of set-off under the usual position in SCR Pt 52A, Rule 9. Any application for interest on the certified costs should be reserved until after judgment...

Court Disposition

Plaintiffs' application otherwise dismissed; defendants ordered to pay costs thrown away by the vacated hearing; plaintiffs reserved liberty to apply after judgment for interest on the certified costs; plaintiffs ordered to pay defendants' costs of the day's application.

Orders

  • ['The defendants are to pay the costs thrown away by reason of the vacating of the hearing date fixed for 17-21 February 2003.' 'Those costs are quantified in the sum of $1092.' 'The plaintiffs have the right to make application that interest should run on the amount of the costs referred to in a certificate of...