Preston v Nikolaidis & Ors [2012] NSWCA 56

Preston v Nikolaidis & Ors [2012] NSWCA 56

The Court declined to grant the order sought for inspection of documents because the application was speculative, raised matters not currently part of the proceedings nor properly pleaded, and would distract from the main issue on the leave application. The question of whether evidence of fraud exists is not currently justiciable, and any such inquiry is properly a matter for the substantive appeal if leave is granted and the issue is admitted.

Parties
Applicant/appellant: John Clement Preston; First Respondent: Leon Nikolaidis; Second Respondent: Doreen Nikolaidis; Third Respondent: Michael Zwar
Jurisdiction
Australia
Judgment Date
12 March 2012
Procedural Posture
Interlocutory Application / Notice of Motion Prior to Leave to Appeal
Outcome
Notice of Motion dismissed
Legal Topics
Interlocutory Judgment, Document Inspection, Legal Costs Assessment, Allegation of Fraud in Costs
Civil Procedure Costs Interlocutory Judgment Document Inspection Legal Costs Assessment Allegation of Fraud in Costs

Case Brief

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Parties

John Clement Preston

Applicant/appellant

Leon Nikolaidis

First Respondent

Doreen Nikolaidis

Second Respondent

Michael Zwar

Third Respondent

Procedural Posture

Interlocutory Application / Notice of Motion Prior to Leave to Appeal

Legal Issues

  1. 1 Whether the applicant should be granted an order for inspection of documents prior to hearing of leave application
  2. 2 Whether documents were fraudulently created to raise assessment costs
  3. 3 Whether applicant is personally liable for bills of costs

Ratio Decidendi

The Court declined to grant the order sought for inspection of documents because the application was speculative, raised matters not currently part of the proceedings nor properly pleaded, and would distract from the main issue on the leave application. The question of whether evidence of fraud exists is not currently justiciable, and any such inquiry is properly a matter for the substantive appeal if leave is granted and the issue is admitted.

Court Disposition

Notice of Motion dismissed

Orders

  • Decline to make the order sought in Notice of Motion filed by the Applicant on 30.01.12.
  • Order the Applicant to pay the Respondents' costs of the Notice of Motion.