Constantinidis v Tsolakis - [2012] NSWSC 1001

Supreme Court

New South Wales

Medium Neutral Citation: Constantinidis v Tsolakis [2012] NSWSC 1001
Hearing dates: 2 August 2012
Decision date: 30 August 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Mr and Mrs Constantinidis' motion is dismissed.
2. Their statement of claim is struck out.
3. Mr and Mrs Constantinidis have leave to file and serve an amended statement of claim within 21 days of this judgment, but for the claims advanced in relation to the 2001 transaction.
4. Mr and Mrs Constantinidis bear Mr Tsolakis' costs of the motions, as agreed or assessed.

Catchwords: PROCEDURE - notice of motions - orders seeking dismissal of proceedings or in the alternative striking out the statement of claim - order seeking default judgment against defendant - defendant former solicitor for the plaintiffs - whether plaintiff failed to commence proceedings on time -
consideration of s 14(1), s 55 and s 63 of the Limitation Act 1969 - plaintiff to be given an opportunity to replead - motions dismissed - orders made - costs
Legislation Cited: Interpretation Act 1987
Limitation Act 1969
Cases Cited: Constantinidis v Kehagiadis [2011] NSWSC 974
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Segal v Young [2001] NSWCA 141
Category: Procedural and other rulings
Parties: George Constantinidis (First Plaintiff)
Gemma Constantinidis (Second Plaintiff)
Vasso Paul Tsolakis (Defendant)
Representation: Counsel:
Mr NJ Beaumont
Solicitors:
Mr George Constantinidis (First Plaintiff,) (unrepresented)
Mrs Gemma Constantinidis (Second Plaintiff) (unrepresented)
Middletons (Defendant)

File Number(s): 2011/315822
Publication restriction: None

Judgment

By motion filed in December 2011, the defendant, Mr Tsolakis, sought orders under Rule 13.4 of the Uniform Civil Procedure Rules 2005, dismissing the proceedings or in the alternative orders under Rule 14.28 striking out the statement of claim filed by the plaintiffs, Mr and Mrs Constantinidis in October 2011. Mr Tsolakis' case was initially that there was no cause of action, that the proceedings were brought out of time, that time having expired between September to December 2007. By motion filed in February 2012, Mr and Mrs Constantinidis sought orders under Part 16 of the Rules, that default judgment be entered in their favour, in circumstances where Mr Tsolakis did not file a defence within the time provided by the Rules.

Mr and Mrs Constantinidis' motion

Mr and Mrs Constantinidis' case was that Mr Tsolakis motion was an abuse of process. Their statement of claim had been settled by senior counsel; they had attempted to serve it upon Mr Tsolakis' solicitors in October 2011, as well as posting it to Mr Tsolakis. A notice of appearance was filed on 10 November. The obligation imposed by Rule 14.3.1 to file a defence within 28 days was triggered, but had not been complied with. In the circumstances, the orders which they sought would be made.

I am satisfied that the orders sought by Mr and Mrs Constantinidis may not be granted. One of the effects of the orders which Mr Tsolakis pursues, is 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 Tsolakis

Details

AGLC: Constantinidis v Tsolakis [2012] NSWSC 1001
Case: [2012] NSWSC 1001
Decision Date: 30 August 2012

CaseChat Overview and Summary

In Constantinidis v Tsolakis, the plaintiffs, Constantinidis, brought an action against Tsolakis, their former solicitor, for professional negligence. The dispute arose from Tsolakis's alleged mishandling of their legal matters, leading to financial loss for the plaintiffs. The case was heard in the Supreme Court of New South Wales, where Tsolakis filed motions seeking the dismissal of the proceedings or, alternatively, the striking out of the statement of claim. Additionally, Tsolakis requested a default judgment against the plaintiffs, arguing that they had failed to commence the proceedings within the statutory time limit.

The legal issues before the court were whether the plaintiffs had failed to commence the proceedings within the time allowed by law and whether the plaintiffs should be given an opportunity to amend their pleadings. The court considered sections 14(1), 55, and 63 of the Limitation Act 1969 (NSW) in determining these issues. Section 14(1) sets out the limitation period for legal actions, while sections 55 and 63 relate to the court's discretion in extending the time for commencing proceedings and the conditions for allowing amendments to pleadings, respectively.

The court found that the plaintiffs had not commenced the proceedings within the statutory time limit, but it also determined that there were grounds to allow the plaintiffs to replead their statement of claim. The court dismissed Tsolakis's motions for dismissal and striking out but granted the plaintiffs an opportunity to amend their pleadings. The court's reasoning was that while the limitation period had expired, the plaintiffs' initial action contained sufficient details to warrant an opportunity to correct the procedural error. Consequently, the court ordered that the motions be dismissed and directed that the plaintiffs be given a chance to amend their statement of claim. Additionally, the court made orders regarding the costs associated with the motions, determining that Tsolakis would bear the costs of the proceedings.

Orders