Supreme Court
New South Wales
Medium Neutral Citation: Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677 Hearing dates: 1-2 December 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order that the motion seeking to have the Registrar’s orders dismissing the proceedings for want of due despatch set aside be dismissed and that Ms Nitopi bear Mr Nitopi’s costs of the motion, as agreed or assessed.
Catchwords: CIVIL PROCEDURE — notices of motion — application to have Registrar’s orders dismissing proceedings for want of due despatch set aside — later application for adjournment of the hearing of that motion — adjournment refused — whether Registrar’s orders should be set aside — what dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-60 — motions dismissed
CIVIL PROCEDURE — Parties — Persons under legal incapacity — where question of party’s capacity arises — where repeated non-compliance with orders requiring production of information about capacity results in dismissal of proceedings for want of due despatch — where default not rectified, even after application to set aside Registrar’s orders made
CIVIL PROCEDURE — Representation — where solicitor has entered appearance for person who has consented to act as tutor as well as for party — where evidence does not establish that party lacks capacity
Legislation Cited: Civil Procedure Act2005 (NSW), ss 3, 55, 56, 57, 58, 59, 60
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 7.24, 7.26, 12.7, 12.7, 42.1
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Supreme Court (Victoria), 8 April 1988, unrep)
Azar v Kathirgamalingan [2012] NSWCA 429
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Estate of Nitopi (No 2) [2021] NSWSC 748
Farr v Queensland [2009] NSWSC 906
Frugtniet v State Bank of New South Wales [1999] NSWCA 458
Green v Healthscope Ltd t/as The Hills Private Hospital [2015] NSWCA 325
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Masterman-Lister v Brutton & Co [2003] 3 All ER 162
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273
Nitopi v Nitopi [2019] NSWCA 81
Nitopi v Nitopi [2021] NSWSC 669
Nitopi v Nitopi [2022] NSWCA 162
Nitopi v Nitopi (Supreme Court (NSW), Hulme J, 5 April 2018, unrep)
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
Stollznow v Calvert [1980] 2 NSWLR 749
Walton v Hartmann [2017] NSWSC 1432
Watson v Watson (1968) 70 SR (NSW) 203
Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433
Witten v Lombard Australia Ltd [1968] 2 NSWLR 529
Category: Procedural rulings Parties: Cristina Pirrello Nitopi…
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- Nitopi bht Nitopi v Nitopi [2022] NSWSC 1677
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- [2022] NSWSC 1677
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CaseChat Overview and Summary
The court held that the Registrar's orders should not be set aside, and dismissed the motions. The court found that the plaintiff's capacity to litigate had not been established, and that the evidence did not demonstrate that she lacked capacity. The court held that the dictates of justice did not require setting aside the Registrar's orders, and that the plaintiff had not demonstrated any ground for relief under the Civil Procedure Act 2005 (NSW). The court also found that the plaintiff's solicitor had entered an appearance for the plaintiff, and that the evidence did not establish that the plaintiff lacked capacity.
The court dismissed the plaintiff's motions to set aside the Registrar's orders and for an adjournment of the hearing of that motion. The court held that the plaintiff had not demonstrated any ground for relief under the Civil Procedure Act 2005 (NSW), and that the dictates of justice did not require setting aside the Registrar's orders. The court found that the evidence did not establish that the plaintiff lacked capacity, and that the plaintiff's solicitor had entered an appearance for her. The court held that the plaintiff had not demonstrated any grounds for setting aside the Registrar's orders, and that the motions should be dismissed.
Orders
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Background
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Evidence
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Decision
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