Constantinidis v Kehagiadis - [2010] NSWSC 1261

CITATION: Constantinidis and Anor v Kehagiadis [2010] NSWSC 1261

HEARING DATE(S): 27 October 2010

JUDGMENT DATE :
4 November 2010

JUDGMENT OF: Schmidt J

DECISION: 1. The plaintiffs are to bear the defendant's costs of the September motion, as agreed or assessed.
2. The plaintiffs to bear the proposed defendants' costs of the August and September motions, as agreed or assessed.

CATCHWORDS: PROCEDURE - Supreme Court procedure - New South Wales - notice of motion - amendment to pleading - leave to file further amended statement of claim - amendment to pleading - plaintiffs withdrew motion - costs - reconsideration of earlier costs orders against plaintiffs sought - unnecessary costs incurred by defendant and proposed defendants as result of plaintiffs' acts - no departure from usual rule - costs ordered - plaintiffs to bear costs as agreed or assessed

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

PARTIES: George Constantinidis - First Plaintiff
Gemma Constantinidis - Second Plaintiff
Meropi Kehagiadis - Defendant

FILE NUMBER(S): SC 2009/297696

COUNSEL: Mr M Dicker - Defendant
Mr N Beaumont for the proposed Second and Third Defendants

SOLICITORS: Plaintiffs - unrepresented
Defendant - Colin Biggers & Paisley

- 9 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT J

THURSDAY, 4 NOVEMBER 2010

2009/297696 CONSTANTINIDIS AND ANOR v KEHAGIADIS

JUDGMENT

: By notice of motion filed on 28 September 2010, the first plaintiff, Mr Constandinidis sought orders:

"1 That the Original Amended Notice of Motion heard on the 7 ^th of September 2010, heard before his Honour Justice Hoeben, dated 22 ^nd June of 2010, be set aside under Reg.36.15(1) of the Uniform Civil Procedure Rules 2005.

2 That the original Amended Notice of Motion lodged by the plaintiffs on the 22 ^nd June of 2010 be dealt with.

3 All costs from the previous hearing of 7 ^th of September 2010, to be reserved.

4 Such further or other orders that the court sees fit."

2 The motion was supported by an affidavit sworn by Mr Constantinidis. At the hearing it was clarified that the amended notice of motion to which reference should have been made was that of 6 August 2010 and that what the plaintiffs in fact wished to pursue, was leave to file a further amended statement of claim dated 25 August 2010 (marked mfi1). By that amended pleading the joinder of Mr Tsolakis and Middletons was sought. The plaintiffs also wanted to pursue a reconsideration of the costs orders made against them by Hoeben J on 7 September.

3 No objection to that course was taken by the defendant, or by the two proposed defendants, Mr Tsolakis and Middletons, who were also represented at the hearing of the motion.

4 The proceedings are concerned with alleged professional negligence on the part of the defendant, Ms Kehagiadis, who formerly acted for the plaintiffs. Mr Constantinidis explained that the proposed addition of Mr Tsolakis reflected that he had acted for…

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.

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Details

Case: [2010] NSWSC 1261
Decision Date: 4 November 2010

CaseChat Overview and Summary

Constantinidis v Kehagiadis is a case that arose before the Supreme Court of New South Wales. The dispute involved the applicants, Constantinidis, who sought leave to file a further amended statement of claim against the respondents, Kehagiadis. The matter reached the court following a motion by the applicants to amend their pleadings, which was subsequently withdrawn. The central legal issues that the court had to address were whether the applicants were entitled to leave to amend their pleadings, and if the costs incurred by the respondents and proposed respondents as a result of the applicants' actions warranted a reconsideration of the earlier costs orders.

The court examined the procedural aspects of the case, particularly the principles governing amendments to pleadings and the associated costs. The applicants had originally moved for leave to file a further amended statement of claim but subsequently withdrew this motion. The court considered whether the withdrawal of the motion affected the costs already incurred by the respondents and proposed respondents. The court found that the applicants had not departed from the usual rules concerning amendments to pleadings. Consequently, the court ordered that the applicants bear the costs as previously agreed or assessed, considering the unnecessary costs incurred by the respondents and proposed respondents due to the applicants' actions.

Orders