Nikolaidis v Chippindall (No 2) [2012] NSWDC 172

District Court New South Wales

Medium Neutral Citation: Nikolaidis v Chippindall (No 2) [2012] NSWDC 172 Hearing dates: 30 May 2012 Decision date: 30 May 2012 Before: Neilson DCJ Decision: I grant leave to the plaintiff to file in Court an amended summons. I grant the relief sought by the current plaintiff. In what I have identified as the first, third, fourth and fifth matters I allow the appeal. I set aside the determination of the review panel in each of those matters and I also set aside each determination of the costs assessor. In the matter I have identified as the second matter, Liberty Holding Pty Ltd ats Goodacre Developments Pty Ltd I grant leave to the plaintiff to appeal against the decision of the costs assessor. I set aside the determination of the costs assessor. I direct that the issue as to the nature of the agreement between the plaintiff and the defendant be tried by a judge of this Court. For the purpose of that hearing I direct that matter be heard before the List Judge on Friday 15 June 2012. I reserve the question of costs to the trial judge. Prima facie the plaintiff is entitled to costs and prima facie the defendant ought have a certificate under the Suitor's Fund Act 1951 if he be qualified to receive such a certificate. The exhibits are to be returned to the plaintiff with the exception of exhibit 1 which is to remain on file. I direct the plaintiff to properly care for the exhibits and to produce them at the next hearing in case there be any cross-examination based on any of the documents which are the exhibits in the plaintiff's case before me. Catchwords: COSTS ASSESSMENT APPEAL - Issue of whether there existed an independent agreement between plaintiff and defendant that the formal costs agreement would only apply if the plaintiff was successful in the matter and recovered a costs order against the other party - Failure of costs assessor to decline to assess costs in accordance with dictum of Hodgson JA in Doyle v Hall Chadwick and send matter back to judicial arm of the Supreme Court for determination by a judge of the factual issue joined between the costs applicant and the costs respondent - Review Panel erred in law in failing to identify this issue and proceeded upon basis that there was no real issue as to whether there were the agreements pounded by the costs applicant Cases Cited: Doyle v Hall Chadwick [2007] NSWCA 159 Najem v Maatouk [2010] NSWSC 20 Category: Procedural and other rulings Parties: Leon Nikolaidis (Plaintiff) John Chippindall (Defendant) Representation: Mr J Svehla (Plaintiff) N/A (Defendant) File Number(s): 2012/13604