Constantinidis v Tsolakis [2012] NSWSC 1001

Constantinidis v Tsolakis [2012] NSWSC 1001

The plaintiffs' statement of claim was struck out because some claims were clearly statute-barred and the pleading did not restrict itself to viable causes of action within time; however, the plaintiffs are given leave to replead their case regarding any claims not extinguished by the statute of limitations, save for claims arising from the 2001 transaction, in light of statutory provisions and the operation of the public holiday extension for filing.

Parties
First Plaintiff: George Constantinidis; Second Plaintiff: Gemma Constantinidis; Defendant: Vasso Paul Tsolakis
Jurisdiction
Australia
Judgment Date
30 August 2012
Procedural Posture
Civil / Motion to Dismiss or Strike Out; Motion for Default Judgment
Outcome
Plaintiffs' motion dismissed; statement of claim struck out; leave to replead granted for claims not related to 2001 transaction; plaintiffs to pay defendant's costs of the motions.
Legal Topics
Limitation Periods, Strike Out Applications, Notice of Motions, Default Judgment, Negligence (solicitor's Duty), Breach of Retainer
Civil Procedure Limitation Periods Strike Out Applications Notice of Motions Default Judgment Negligence (solicitor's Duty) Breach of Retainer

Case Brief

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Parties

George Constantinidis

First Plaintiff

Gemma Constantinidis

Second Plaintiff

Vasso Paul Tsolakis

Defendant

Procedural Posture

Civil / Motion to Dismiss or Strike Out; Motion for Default Judgment

Legal Issues

  1. 1 Whether the plaintiffs' claim was brought out of time under the Limitation Act 1969.
  2. 2 Whether the statement of claim discloses an arguable case against the defendant.
  3. 3 Whether the defendant's motion to dismiss or strike out should be granted.

Ratio Decidendi

The plaintiffs' statement of claim was struck out because some claims were clearly statute-barred and the pleading did not restrict itself to viable causes of action within time; however, the plaintiffs are given leave to replead their case regarding any claims not extinguished by the statute of limitations, save for claims arising from the 2001 transaction, in light of statutory provisions and the operation of the public holiday extension for filing.

Court Disposition

Plaintiffs' motion dismissed; statement of claim struck out; leave to replead granted for claims not related to 2001 transaction; plaintiffs to pay defendant's costs of the motions.

Orders

  • Mr and Mrs Constantinidis' motion is dismissed.
  • Their statement of claim is struck out.