Constantinidis v Tsolakis (No 2) - [2013] NSWSC 809

Supreme Court

New South Wales

Medium Neutral Citation: Constantinidis v Tsolakis (No 2) [2013] NSWSC 809
Hearing dates: 13/06/2013
Decision date: 20 June 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiffs' first amended statement of claim filed 20 September 2012 is dismissed.
(2) The plaintiffs' notice of motion filed 6 March 2013 is dismissed.
(3) The plaintiffs are to pay the defendant's costs of the proceedings. These costs are to include the defendant's notice of motion filed 12 December 2012.

Catchwords: PRACTICE AND PROCEDURE - failure to comply with previous orders to file amended statement of claim - additional amended statement pleading matters statute barred and previously disallowed
Legislation Cited: Civil Procedure Act 2005
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Constantinidis v Kehagiadis (No 2) [2011] NSWSC 1226
Constantinidis v Tsolakis [2012] NSWSC 1001
Category: Procedural and other rulings
Parties: George Constantinidis (First Plaintiff)
Gemma Constantinidis (Second Plaintiff)
Vasso Paul Tsolakis (Defendant)
Representation: Counsel:
NJ Beaumont (Defendant)
Solicitors:
Middletons (Defendant)

File Number(s): 2011/315822

Judgment

HER HONOUR: There are two notices of motion before the Court. By notice of motion filed 12 December 2012, the defendant seeks an order, firstly that the first amended statement of claim filed 20 September 2012 be struck out pursuant to s 61(3)(b) of the Civil Procedure Act 2005, for failure to comply with the orders made by Schmidt J on 30 August 2012; secondly, an order that the proceedings be dismissed pursuant to s 61(3)(a) of the Civil Procedure Act, for failure to comply with the orders made by Schmidt J on 30 August 2012; thirdly, an order that the first amended statement of claim filed 20 September 2012 be otherwise struck out; and fourthly, an order that the proceedings be otherwise dismissed.

By notice of motion filed 6 March 2013, the first and second plaintiffs seek, firstly, an order that the notice of orders of Schmidt J published on 30 August 2012, parts one, two, three and four be struck out in their entirety; secondly, an order that the plaintiffs' notice of motion filed 7 February 2012 seeking default judgment be heard; and thirdly, an order for costs against the defendant regarding the wasted time pursuant to the matter of the Limitation Act 1969.

The first plaintiff is George Constantinidis. The second plaintiff is Gemma Constantinidis. The first and second plaintiffs are husband and wife. The defendant is Vasso Paul Tsolakis, a solicitor. Mr Tsolakis formerly acted as Mr and Mrs Constantinidis' solicitor. Mr Tsolakis relied on the affidavits of his solicitor Toby Colin Blyth dated 3 December 2012 and 13 June 2013.

On the day of the hearing of the motions, namely 13 June 2012, Mr and Mrs Constantinidis did not appear at Court. They were called outside Court three times shortly after 10.00 am, 11.10 am and again at 2.28 pm. During the morning of the…

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 (No 2)

Details

AGLC: Constantinidis v Tsolakis (No 2) [2013] NSWSC 809
Case: [2013] NSWSC 809
Decision Date: 20 June 2013

CaseChat Overview and Summary

The matter before the Court was an application by the defendant for an order that the plaintiff's amended statement of claim be struck out, or alternatively that the plaintiff be ordered to pay the defendant's costs. The plaintiff had failed to comply with previous orders to file an amended statement of claim, and had instead filed an additional amended statement which included matters that were statute-barred and had previously been disallowed. The Court was required to decide whether the plaintiff's amended statement of claim should be struck out, and if so, whether the plaintiff should be ordered to pay the defendant's costs.

The Court found that the plaintiff had repeatedly failed to comply with orders to file an amended statement of claim, and had instead continued to file additional amended statements that included matters that were statute-barred and had previously been disallowed. The Court held that the plaintiff's conduct amounted to an abuse of process, and that the defendant was entitled to an order striking out the plaintiff's additional amended statement of claim. The Court also found that the plaintiff's conduct warranted an order that the plaintiff pay the defendant's costs.

The Court ordered that the plaintiff's additional amended statement of claim be struck out, and that the plaintiff pay the defendant's costs of and incidental to the application. The Court noted that the defendant's application was not an application for summary judgment, and that the plaintiff was still entitled to file a further amended statement of claim that complied with the Court's previous orders.

Orders