Tsekouras v Evangelinidis

[2001] NSWSC 755

CITATION:	Tsekouras v Evangelinidis [2001] NSWSC 755
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11541/01
HEARING DATE(S):	27 August 2001
JUDGMENT DATE:	31 August 2001
PARTIES :	Con Tsekouras Vivieca Evangelinidis
JUDGMENT OF:	Sperling J at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	11541/01
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL :	Plaintiff (Appellant) in person J T Johnson for the Defendant (Respondent)
SOLICITORS:	Plaintiff (Appellant) in person Sally Nash & Co Solicitors for the Defendant (Respondent)
CATCHWORDS:	Practice and procedure - statement of claim struck out - appeal from Master - no question of principle
LEGISLATION CITED:	Supreme Court Rules 1970, Parts 13 & 15
DECISION:	1. Appeal dismissed; 2. Appellant (plaintiff) to pay the respondent (defendant)’s costs of the appeal on an indemnity basis.

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES

Common Law Division

31 August 2001

SPERLING J

11541/01 Con Tsekouras v Vivieca Evangelindis

Judgment

1    These proceedings were commenced by statement of claim filed on 10 May 2001. The pleading in that document is as follows:

Particulars of Claim
The applicant had paid the costs to the amount of $247,705.24 plus interest
Claim
$750,000.00
-DAMAGES
-INTEREST UNDER SECTION 94
-COSTS
SUPERANNUATION
INCOME LOST

2    There is a note in the margin of the statement of claim: “All information in the High Court Application Book No S 187 of 2000”. That was the appeal book for an application for special leave to appeal the High Court from a decision of the Full Court of the Federal Court dismissing an appeal from a decision by Hely J in that court. Hely J had made a sequestration order against the plaintiff. The petition was based on a bankruptcy notice issued by the defendant, which in turn was based on a judgment obtained by the defendant against the plaintiff for legal costs in relation to a personal injury claim on which the defendant had acted as the plaintiff’s solicitor. In the course of his determination, Hely J rejected an off-setting claim by the plaintiff that he had paid a sum in the order of $250,000 to the defendant in relation to the personal injury proceedings.

3    The Application Book is intended to provide particulars of the plaintiff’s claim in the present proceedings. Thus, the sum of $247,705.24 specified in the statement of claim filed in this Court consists of moneys allegedly paid to the defendant in relation to the personal injury proceedings. The claim now made is, accordingly, in substance, coextensive with the off-setting claim rejected by Hely J.

4    No cause of action is disclosed for the claim for $750,000 general damages by reference to the Application Book or otherwise.

5    By notice of motion filed on 6 June 2001, the defendant sought the following orders, so far as is relevant:

1. That these proceedings be dismissed pursuant to Pt 13 r 5.
2. That the statement of claim be struck out pursuant to Pt 15 r 26.
3. That the plaintiff not be entitled to file any further statement of claim in these proceedings without further order of a judge of the Supreme Court of New South Wales.

Paragraphs 2 and 3 together were an alternative to para 1.

6 Part 13 r 5 provides as follows so far as is relevant:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

Part 15 r 26 provides as follows so far as is relevant:

Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.

7    The motion was heard by a master of this Court on 25 July 2001. The plaintiff appeared in person. Mr Skinner of counsel appeared for the defendant. Judgment was given on 27 July 2001. The orders made were:

1. The statement of claim is dismissed.
2. The plaintiff is to pay the defendant’s costs.

8    In her reasons for judgment, the master said:

The defendant has sought that the plaintiff not be entitled to file any further statement of claim in these proceedings without further order of a judge of this court. As I have dismissed the statement of claim, there is no utility in making such an order.

9 From this, it is apparent that the master did not intend to dismiss the proceedings pursuant to Pt 13 r 5 but intended to strike out the statement of claim pursuant to Pt 15 r 26. I construe the orders made accordingly. Whether the orders made had the effect which the master may have intended it is unnecessary to consider.

10    The plaintiff filed a notice of appeal on 10 August 2001. The grounds of appeal are as follows:

1. Her Honour did not look at the documents contained in the Special Fixture Book filed in the court on the 12th July 2001.
2. The Special Fixture Book contains all the documents required by the court including all affidavits and the statement of claim.
3. Her Honour did not give the appellant a reason for dismissing this claim.

11    As to Ground 1, the master said in her reasons for decision:

The plaintiff relied on his booklet called “Special Fixture”.

This was reference to a book of documents prepared by the plaintiff for use at the hearing before the master. Only page 14 of the book was tendered by the plaintiff. That page was admitted into evidence. (It is incorrectly referred to as “page 24” at page 8 of the transcript of the proceedings before the master). Page 14 of the book is a letter from the plaintiff to the court’s Manager Costs Assessment. So far as could be relevant, the letter reads as follows:

The total costs for the District Court, Supreme Court and High Court are $10,242.50 not the figure of $73,251.84

This is a reference to the defendant’s successful claim for costs in relation to the personal injury proceedings.

12    Ground 1 of the notice of appeal fails because it is not established that the master erred as alleged. She was not required to look at the whole of the book.

13    Ground 2 adds nothing to Ground 1.

14    Ground 3 fails on an examination of the master’s reasons for decision. There, she makes clear that the reason for the orders made by her was that the plaintiff’s claim in the present proceedings was barred by the decision of the Federal Court when the sequestration order was made against the plaintiff and in the course of which the off-setting claim against the defendant, to which I have referred, was rejected.

15    Ground 3 accordingly fails.

16    The plaintiff’s appeal came on for hearing before me. The plaintiff appeared in person. Mr Johnson of counsel appeared for the defendant.

17    The grounds of appeal are unsustainable. The appeal should be dismissed.

18    As I have mentioned, the defendant asks for an order that the plaintiff not be permitted to file any further process in respect of the claim without prior leave of the court.

19    There is no cross-appeal or other process before the court to provide a vehicle for such an order. I do not think I should entertain the application in those circumstances.

20    The defendant asks for an order for costs on an indemnity basis. Costs should, of course, follow the event. Additionally, the appeal was utterly without merit, there being no reasonably arguable support for any of the grounds of the appeal. Costs should be paid on an indemnity basis.

21    The orders on appeal should, therefore, be as follows:

(1) Appeal dismissed.
(2) Appellant (plaintiff) to pay the respondent (defendant)’s costs of the appeal on an indemnity basis.
-oOo-

Last Modified: 09/03/2001