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Constantinidis v Kehagiadis

Constantinidis v Kehagiadis

Case [2011] NSWSC 974 2 September 2011

Jurisdiction

Pleading

Amendment of Pleadings

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Constantinidis v Kehagiadis [2011] NSWSC 974
Hearing dates: 28 July 2011
Decision date: 02 September 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) I dismiss the Plaintiffs' Notice of Motion filed 30 June 2011.
(2) Any further application to file a Statement of Claim or an amended Statement of Claim is confined to the claims contained in section (2) of this judgment.
(3) Any further application to amend the Statement of Claim is to be filed by no later than 4 October 2011. The Motion or any affidavit in support is to annex the proposed Statement of Claim. The Motion is to be returnable before me on 14 October 2011 at 2.00pm.
(4) If no such application is filed by 4 October 2011 the proceedings are dismissed with costs.
(5) The Plaintiffs' application for referral to the Registrar for pro bono assistance is refused.
(6) The Plaintiffs are to pay the costs of the Notice of Motion.

Catchwords: PROCEDURE - pleading - leave to file Amended Statement of Claim - whether causes of action disclosed - whether pleading is embarrassing - whether Plaintiffs should be permitted to replead after strike out.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Fair Trading Act 1987
Legal Profession Act 2004
Limitation Act 1969
Real Property Act 1900
Revised Professional Conduct and Practice Rules 1995 (the Solicitors' Rules)
Uniform Civil Procedure Rules
Victims Support and Rehabilitation Act 1996
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951
Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899
Cheney & Wilson v Duncan [2001] NSWCA 197
David Charles Bott v Trevor John Carter [2009] NSWSC 236
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kelly v Mosman Municipal Council [2010] NSWCA 370
Logan v Baird [2011] NSWCA 19
McGuirk v The University of New South Wales [2009] NSWSC 1424
Walmsley v Cosentino [2001] NSWCA 403
Wilson v Rigg [2002] NSWCA 246
Category: Procedural and other rulings
Parties: George Constantinidis (First Plaintiff)
Gemma Constantinidis (Second Plaintiff)
Meropi Kehagiadis (Defendant)
Representation: Self represented (Plaintiffs)
M Dicker (Defendant)
Self represented (Plaintiffs)
Colin Biggers & Paisley (Defendant)

File Number(s): 2009/297696

Judgment

On 16 June 2011 I struck out a Statement of Claim dated 1 July 2009 filed by the Plaintiffs against the Defendant who was their former solicitor. I did this pursuant to a Notice of Motion filed by the Defendant who sought not only to strike out the Statement of Claim but to dismiss the proceedings altogether.

When I gave judgment on that date I said this:

Because of the procedural irregularities that occurred by reason of the wrongful filing of Amended Statements of Claim, the issue of the adequacy of those documents has never properly been decided by a judicial officer of the Court. It seems to me that the Plaintiffs ought to be given one last opportunity to present to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Constantinidis v Kehagiadis

Details

AGLC: Constantinidis v Kehagiadis [2011] NSWSC 974
Case: [2011] NSWSC 974
Decision Date: 02 September 2011

CaseChat Overview and Summary

Constantinidis v Kehagiadis involved the plaintiffs seeking leave to file an amended statement of claim against the defendants. The plaintiffs, who were seeking damages for alleged breaches of contract and associated claims, sought to amend their initial statement of claim following a strike out application by the defendants. The nature of the dispute centred around whether the plaintiffs' amended pleading sufficiently disclosed causes of action and whether the plaintiffs should be granted leave to replead after the initial strike out. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiffs' amended statement of claim disclosed causes of action that were both valid and legally sufficient. The court also had to determine if the plaintiffs' proposed pleading was embarrassing and whether it was in the interests of justice to permit the plaintiffs to replead after the strike out. The court was tasked with assessing the merits of the plaintiffs' case in light of the amended pleading and the potential prejudice to the defendants if leave to amend was granted.

In its decision, the court found that the plaintiffs' amended statement of claim did not sufficiently disclose causes of action that were legally sound. The court held that the pleading was indeed embarrassing and that there was no compelling reason to allow the plaintiffs to replead. The court emphasised that the interests of justice did not favour permitting the plaintiffs to continue with the case, given the deficiencies in the amended pleading. Consequently, the court dismissed the application for leave to file an amended statement of claim.

The court's final orders were that the plaintiffs' application for leave to amend their statement of claim was dismissed, and the strike out of the initial statement of claim was upheld. This decision effectively concluded the plaintiffs' right to pursue their claims against the defendants in that proceeding.

Orders