Moriah War Memorial College v Nosti
[2020] NSWSC 603
•21 May 2020
Supreme Court
New South Wales
Medium Neutral Citation: Moriah War Memorial College v Nosti [2020] NSWSC 603 Hearing dates: On the papers Date of orders: 21 May 2020 Decision date: 21 May 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Vary order to increase the amount the second defendant may spend on her costs to $200,000
Category: Procedural and other rulings Parties: Moriah War Memorial College Association (Plaintiff)
Augustine Robert Nosti (First Defendant)
Melynda Maree Nosti (Second Defendant)
Christine Anne Padovan (Third Defendant)Representation: Counsel:
Solicitors:
D R Sulan with K Sutton (Plaintiff)
K J Young (Second Defendant)
Arnold Bloch Leibler (Plaintiff)
Legal Review Pty Ltd (First Defendant)
Dormer Stanhope (Second Defendant)
File Number(s): 2019/346423
Judgment
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The plaintiff, Moriah War Memorial College Association (“the College”), alleges that its former financial controller, the first defendant, Mr Nosti, has stolen from it some $7.3 million.
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The College alleges that Mr Nosti’s former wife, the second defendant, was a knowing recipient of certain of the misappropriated funds.
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Mr Nosti has entered a submitting appearance.
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The proceedings are listed for four days, commencing 22 June 2020 at which time the Court will determine whether Ms Nosti has any liability in relation to her former husband’s misdeeds.
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By amended notice of motion filed on 18 May 2020, Ms Nosti seeks to vary a freezing order made against her when these proceedings commenced on 4 November 2019.
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Some agreement has been reached as to the variations sought by Ms Nosti. The variations now sought by Ms Nosti that are contested by the College are the variations:
to allow Mr Nosti to transfer to Ms Nosti an Audi car, together with certain household effects;
to increase the amount that Ms Nosti may spend on legal expenses from $50,000 to $200,000.
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I am not at this stage prepared to make a variation to the order concerning the car or the household effects. That matter can be taken up with the trial judge during the hearing. I understand that Ms Nosti is, in any event, in possession of these items.
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As to Ms Nosti’s legal expenses, the only dispute is whether the varied figure should be $200,000, as sought by Ms Nosti, or $150,000 as submitted on behalf of the College.
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Ms Nosti’s solicitor deposes that Ms Nosti has incurred legal expenses in the order of $55,000 and estimates that Ms Nosti will incur between $130,000 and $150,000 further legal expenses to the final hearing.
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Although the College previously agreed that the increased figure should be $200,000, it now submits that the figure of $150,000 is “more appropriate” for a number of reasons set out in its counsel’s submissions and that “If Ms Nosti is to incur costs greater than $150,000 then she can seek a further variation”.
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I do not think it would be fair to Ms Nosti to require her to make a further application in respect of her costs between now and the hearing. Her solicitor’s estimate appears to me to be reasonable. I propose to vary the order to increase the amount she may spend on her costs to $200,000.
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The parties should now confer and agree on the orders necessary to give effect to these matters, and to the other matters in respect of which there is agreement.
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Decision last updated: 21 May 2020
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