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 1HER 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. 2By 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. 3The 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. 4On 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 hearing, the defendant's solicitor telephoned Mr Constantinidis and was informed by Mr Constantinidis that he and his wife would not be attending Court on the day of the hearing. I am satisfied that both plaintiffs knew that the motions were listed for hearing on that day and that they both elected not to appear.