Moulieux Pty Ltd (In Liquidation) & Ors v Nikolaidis & Anor [2000] NSWSC 725

New South Wales Supreme Court

CITATION : Moulieux Pty Ltd (In Liquidation) & Ors v Nikolaidis & Anor [2000] NSWSC 725 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20389 of 1998 HEARING DATE(S) : 3 July 2000 JUDGMENT DATE : 26 July 2000

Moulieux Pty Limited (In Liquidation) (First Plaintiff) J C Preston Pty Limited (In Liquidation) (Second Plaintiff) Four MJ Pty Limited (Third Plaintiff) PARTIES : John Clement Preston (Fourth Plaintiff) Margo Elizabeth Preston (Fifth Plaintiff) v Mitrofanis Demetrius Nikolaidis and Leon Nikolaidis (Defendants) JUDGMENT OF : Master Malpass

COUNSEL : N/A (Plaintiffs) Mr D R Pritchard (Defendants) N/A (First and Second Plaintiffs) SOLICITORS : Mr J Preston - In person (Third to Fifth Plaintiffs) Henry Davis York (Defendants) CATCHWORDS : Summary disposition of proceedings - expiry of relevant limitation period - no question of principle. LEGISLATION CITED : N/A CASES CITED : Cartledge v E Jopling and Sons Limited (1963) AC 758. Hawkins v Clayton (1988) 164 CLR 539. DECISION : See paragraphs 20-21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 26 JULY 2000

20389 of 1998 MOULIEUX PTY LIMITED (IN LIQUIDATION) & ORS v MITROFANIS DEMETRIUS NIKOLAIDIS & ANOR JUDGMENT 1 Proceedings were commenced by Statement of Claim filed on 9 October 1998. The process names five plaintiffs. It was filed by "Wheelers" who had received instructions to act in early 1997. 2 The first plaintiff had been deregistered on 19 April 1993. The second plaintiff had been deregistered on 9 October 1995. The fourth and fifth plaintiffs had been the directors and shareholders of each of the first and second plaintiff. They are directors and shareholders of the third plaintiff, (which is one of their many companies). 3 The process seeks to propound a claim founded on negligence. The relevant factual background reveals a saga of extraordinary delay and inaction. The companies of the fourth and fifth plaintiffs seem to have been involved in a multiplicity of litigation. 4 It is alleged that Mr Strong gave negligent advice in about June 1980. Instructions were given to the present defendants in about late 1983. They filed process in 1986 against Strong. The process named the second plaintiff and two other companies as the plaintiffs in the proceedings. 5 It is now alleged that the two companies should not have been parties to the proceedings and that the first plaintiff, the third plaintiff together with the fourth and fifth plaintiffs should have been parties to the proceedings. Claims against Mr Strong are now said to be statute barred. 6 The process filed by Wheelers also purports to advance allegations of negligence in relation to claims allegedly had by Moulieux Pty Limited against other parties. 7 The proceedings are in the Professional Negligence List. There seems to be no issue that the process has pleading problems (both in relation to parties and material allegations). Leave was given to amend the process. This leave was not exercised. Leave was given to bring a Notice of Motion for summary relief. A Notice of Motion was filed on 10 March 2000 by the defendants. Following the service of the Notice of Motion, Wheelers ceased to act in the proceedings. Since March 2000, there has been no solicitor on the record for the plaintiffs. 8 The Notice of Motion has been twice before a Registrar for the purpose of the fixing of a date for hearing. A hearing date was allocated on 21 June 2000. The hearing was fixed for and took place on 3 July 2000. 9 The fourth plaintiff had appeared before the Registrar on 21 June 2000. He appeared on 3 July 2000 and initially sought to conduct the case on behalf of all the plaintiffs. It was later conceded that he could not appear for the first and second plaintiffs, (who had ceased to be legal entities prior to commencement of proceedings). There was no objection to him appearing on behalf of the third and fifth plaintiffs. 10 Mr Evans (the solicitor for the defendants) has sworn two affidavits. The fourth plaintiff has sworn an affidavit. Also, he tendered a further letter. 11 The defendants seek relief on two bases. The first basis is that the proceedings are well and truly statute barred. The second basis is that they should be dismissed for want of prosecution. 12 There was no dispute that the claims purportedly made on behalf of the first and second plaintiffs could not succeed. Clearly, they were not maintainable. Accordingly, an order was made dismissing those claims. The court reserved the question of costs in relation to the putative first and second plaintiffs. 13 Apart from failure to comply with directions of the court, there has been other substantial delay in the conduct of these proceedings (inter alia involving a failure to furnish particulars). The fourth plaintiff seeks to attribute default to the conduct of Wheelers. It is unnecessary to pursue these considerations because the proceedings can be disposed of on the first basis. 14 The allegations of negligence made in relation to the three claims allegedly had by Moulieux Pty Limited against the other parties are doomed to failure. They relate to modest claims apparently founded on debt. There are the questions of locus standi. In addition to these problems, the relevant limitation periods had expired some years before the commencement of these proceedings. 15 The principal claim that was sought to be advanced in these proceedings is also doomed to failure. In relation to it, the relevant limitation period expired in about 1992. 16 The fourth plaintiff sought to advance the contention that the relevant limitation period did not commence to run until 1992. It was said from the Bar Table that this was when there first became awareness that the defendants had been negligent. It was said that this awareness came about upon the receiving of advice from both solicitor and counsel. The identity of these legal representatives could not be recalled. 17 There is a lack of evidence to support the allegations that were made from the Bar Table. In any event, it does not matter. The alleged lack of awareness does not prevent time running (see inter alia Cartledge v E Jopling and Sons Limited (1963) AC 758 and Hawkins v Clayton (1988) 164 CLR 539). 18 The court has a discretionary power to grant summary relief. The defendants bear the onus of satisfying the court of their entitlement to that relief. The relief is only granted in what might be described as clear cases. In the circumstances of this case, I am satisfied that the relevant onus has been discharged by the defendants. 19 For completeness, I should mention that the fourth plaintiff has taken the stance that he did not oppose the dismissal of the proceedings so long as he retained the right to re-instate them. The fourth plaintiff was unable to assist as to how this might be achieved. It was said that he had in mind doing so when documents had been obtained from Wheelers and legal representatives had been instructed. This stance was unacceptable to the defendants. For the reasons already advanced, I am of the view that there would be no utility (even if there had been power to do so) in endeavouring to reserve any right of reinstatement. 20 The Statement of Claim is dismissed. The third plaintiff, the fourth plaintiff and the fifth plaintiff are to pay the costs of the defendants. The Exhibit may be returned. 21 It seems to be envisaged that a proceeding may be brought against Wheelers. If such proceedings are brought, the costs payable in these proceedings may be claimed by way of damages in such proceedings. I reserve the position of the defendants should they wish to look to Wheelers in respect of costs. **********