Gemma Constantinidis v Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis [2023] NSWSC 128

Supreme Court New South Wales

Medium Neutral Citation: Gemma Constantinidis v Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis [2023] NSWSC 128 Hearing dates: 30 November 2022 Date of orders: 24 February 2023 Decision date: 24 February 2023 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the plaintiff's notice of motion filed 10 June 2022. (2) The plaintiff is to pay the costs of the first to fifth defendants, the seventh defendant, and the thirteenth to sixteenth defendants of that motion. (3) Dismiss the plaintiff's claim against the fifth to eighth defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). (4) The plaintiff is to pay the costs of the fifth and seventh defendants of their notice of motion filed 7 September 2022. (5) Dismiss the plaintiff's claim against the first to fourth defendants and the thirteenth to sixteenth defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). (6) The plaintiff is to pay the costs of the first to fourth defendants and the thirteenth to sixteenth defendants of their notice of motion filed 29 June 2022. (7) Dismiss the plaintiff's claim against the ninth and eleventh defendants. (8) In respect of the tenth and twelfth defendants, if the plaintiff intends to proceed against these parties: (a) The plaintiff is to file an amended statement of claim correctly naming the twelfth defendant; and (b) Within 14 days, the plaintiff is to serve the amended statement of claim on each of the tenth and twelfth defendants, and is to inform them in writing that the proceedings will be listed on 17 March 2023. (9) Stand over the proceedings for mention to 17 March 2023 before me. (10) Any applications for special costs orders are to be filed and served by 13 March 2023 and made returnable before me for mention and directions on 17 March 2023. Catchwords: CIVIL PROCEDURE – service – notice of motion by plaintiff – seeking default judgment against sixteen defendants – notices of motion by some of the defendants seeking summary dismissal – personal service not effected – no merit to application for default judgment CIVIL PROCEDURE – summary disposal – where plaintiff previously involved in Federal Circuit Court litigation concerning bankruptcy of late husband and previous Federal Circuit Court family law proceedings – issue estoppel – Anshun estoppel – extended estoppel - whether an abuse of process is demonstrated – where all claims made had been decided in earlier proceedings – where abuse of process to attempt to relitigate in present proceedings – where proceedings should be dismissed – r 13.4 UCPR OCCUPATIONS – legal practitioners – solicitors – where solicitors acted for opposing party in contentious proceedings – where solicitors acted for trustee in bankruptcy to sell property in which plaintiff had no interest - no duty owed to plaintiff Legislation Cited: Bankruptcy Act 1966 (Cth) Uniform Civil Procedure Rules 2005 (NSW) rr 3.7, 7.19, 10.20, 12.7, 13.4, 14.3, 14.28, 16.2 Cases Cited: Callas v Callas [2016] FCCA 1247 Callas v Callas [2018] FCCA 4 Constantinidis v Constantinidis [2018] Fam CAFC 124 Constantinidis v Constantinidis [2022] FedCFamC2F 203 Constantinidis v Prentice as Trustee of the Bankrupt Estate of Constantinidis [2022] FedCFamC2G 503 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 Guss v Johnstone [2000] HCA 26; (2000) 74 ALJR 884 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Prentice v Constantinidis (No 3) [2015] FCCA 1438 Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 Reichel v McGrath (1889) 14 App Cas 665 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Texts Cited: Nil Category: Procedural rulings Parties: Gemma Constantinidis (Plaintiff) Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis (First Defendant) Maxwell William Prentice, David Henry Sampson, Mitchel Warren Ball and Sampson Prentice Ball trading as BPS Recovery (Second Defendant) David Henry Sampson (Third Defendant) Nicole Greentree (Fourth Defendant) Jayne Edwards (Fifth Defendant) Jayne Edwards Reality Pty Ltd (Sixth Defendant) Michael Curtis (Seventh Defendant) Ray White Realty Hurstville Pty Ltd (Eighth Defendant) Security guard employed by Security One Pty Ltd in attendance at auction of matrimonial home on 7 November 2015 (Ninth Defendant) Security One Pty Ltd (Tenth Defendant) Auctioneer in attendance at auction of matrimonial home on 7 November 2015 (Eleventh Defendant) AAA Recycling (Twelfth Defendant) Dajana Malsernic (Thirteenth Defendant) Dominque Robinson (Fourteenth Defendant) Polczynski Robinson Lawyers (Fifteenth Defendant) Antonios Kontellis (Sixteenth Defendant) Representation: Counsel: In person (Plaintiff) S Golledge SC & M Cowden (First to Fourth Defendants; Thirteenth – Fifteenth Defendants) C Perry (Fifth and Seventh Defendants)