John Clement Preston & Anor v Leon Nikolaidis t/as MD Nikolaidis & Co [2011] NSWSC 1074

John Clement Preston & Anor v Leon Nikolaidis t/as MD Nikolaidis & Co [2011] NSWSC 1074

It was not open to the Plaintiffs to raise the issue that the First Plaintiff was not personally liable for costs, as such liability was a necessary basis of the orders for taxation previously made in the proceedings. The judgment and orders of RS Hulme J are issue estoppel and preclude reconsideration of Mr Preston's status as a person liable for costs. Leave to withdraw admissions is not granted.

Jurisdiction
Australia
Judgment Date
13 September 2011
Procedural Posture
Equity Proceedings / Determination of Whether Liability Issue Previously Decided; Post Mediation Hearing
Outcome
Plaintiffs not permitted to agitate Preston Liability issue; leave to withdraw admissions refused; costs orders against Plaintiffs.
Legal Topics
['issue Estoppel' 'res Judicata' 'withdrawal of Admissions' 'taxation of Costs' 'standing to Seek Taxation' 'referral of Costs Assessment']
['civil Procedure' 'legal Costs' 'equity'] ['issue Estoppel' 'res Judicata' 'withdrawal of Admissions' 'taxation of Costs' 'standing to Seek Taxation' 'referral of Costs Assessment']

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Procedural Posture

Equity Proceedings / Determination of Whether Liability Issue Previously Decided; Post Mediation Hearing

Legal Issues

  1. 1 ["Whether the issue of Mr Preston's personal liability for costs is open in the proceedings" 'Whether the Plaintiffs can withdraw admissions as to liability' 'Whether the matter should be referred to a referee rather than a costs assessor']

Ratio Decidendi

It was not open to the Plaintiffs to raise the issue that the First Plaintiff was not personally liable for costs, as such liability was a necessary basis of the orders for taxation previously made in the proceedings. The judgment and orders of RS Hulme J are issue estoppel and preclude reconsideration of Mr Preston's status as a person liable for costs. Leave to withdraw admissions is not granted.

Court Disposition

Plaintiffs not permitted to agitate Preston Liability issue; leave to withdraw admissions refused; costs orders against Plaintiffs.

Orders

  • ['Direct parties to submit Short Minutes of Order to give effect to agreed rates for costs assessment and this judgment.' 'Plaintiffs to pay costs of and incidental to this hearing; leave granted for those costs to be assessed forthwith to the extent necessary.']