Preston v Nikolaidis [2021] NSWSC 36

Preston v Nikolaidis [2021] NSWSC 36

Leave is granted for the plaintiff to rely on four affidavits served after 16 August 2019 for the purpose of the present application, as no prejudice to the defendants is caused and this best serves the overriding purpose of just, quick and cheap resolution of the real issues. However, leave to file the verified statement of claim seeking to set aside prior costs orders is refused. The claims advanced are precluded by Anshun estoppel, in that the plaintiff unreasonably withheld issues and claims concerning alleged overcharging and fraudulent conduct, which could and should have been raised in earlier stages of the proceeding. Furthermore, pursuing the claims now would constitute an abuse...

Jurisdiction
Australia
Judgment Date
02 February 2021
Procedural Posture
Application (equity Applications List) / Interlocutory Decision on Notice of Motion for Leave to Rely on Affidavits and Leave to File Verified Statement of Claim
Outcome
Application for leave to rely on late affidavits granted; application for leave to file the verified statement of claim refused; notice of motion dismissed save as to costs and leave to rely on affidavits.
Legal Topics
['practice and Procedure' 'res Judicata' 'estoppel' 'abuse of Process' 'setting Aside Judgments' 'costs Orders']
['civil Procedure' 'costs' 'equity'] ['practice and Procedure' 'res Judicata' 'estoppel' 'abuse of Process' 'setting Aside Judgments' 'costs Orders']

Case Brief

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Procedural Posture

Application (equity Applications List) / Interlocutory Decision on Notice of Motion for Leave to Rely on Affidavits and Leave to File Verified Statement of Claim

Legal Issues

  1. 1 ['Whether plaintiff should be granted leave to rely on affidavits filed after the deadline for evidence' 'Whether plaintiff should be granted leave to file a verified statement of claim seeking to set aside previous costs orders' 'Whether the application is precluded by res judicata, cause of action estoppel, issue estoppel or Anshun estoppel' 'Whether the application is an abuse of process' "Whether the plaintiff's claims are so untenable as to warrant refusal of leave"]

Ratio Decidendi

Leave is granted for the plaintiff to rely on four affidavits served after 16 August 2019 for the purpose of the present application, as no prejudice to the defendants is caused and this best serves the overriding purpose of just, quick and cheap resolution of the real issues. However, leave to file the verified statement of claim seeking to set aside prior costs orders is refused. The claims advanced are precluded by Anshun estoppel, in that the plaintiff unreasonably withheld issues and claims concerning alleged overcharging and fraudulent conduct, which could and should have been raised in earlier stages of the proceeding. Furthermore, pursuing the claims now would constitute an abuse...

Court Disposition

Application for leave to rely on late affidavits granted; application for leave to file the verified statement of claim refused; notice of motion dismissed save as to costs and leave to rely on affidavits.

Orders

  • ['Leave granted to plaintiff to rely on affidavits of John Preston (sworn 20 August 2019 and 21 October 2019) and Ivy Zhao (sworn 19 August 2019 and 28 October 2019) in support of the application.' 'Application otherwise dismissed.' 'Notice of motion filed 15 November 2018 dismissed.' 'Points of claim filed 28 June...