Nitopi, Cristina v Nitopi, Giuseppe - [2018] NSWSC 609

Supreme Court

New South Wales

Medium Neutral Citation: Nitopi, Cristina v Nitopi, Giuseppe [2018] NSWSC 609
Hearing dates: On the papers
Decision date: 07 May 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Costs on an indemnity basis refused

Catchwords: COSTS – application for costs on indemnity basis – where Court dismissed plaintiff’s statement of claim for want of due dispatch with costs – where proceedings delayed by plaintiff for 3 years – whether plaintiff’s conduct amounted to relevant delinquency – no further evidence provided showing plaintiff responsible for abuse of processes of the Court – whether Court functus officio upon making costs order – order not reduced to writing or entered up – Court not functus officio – application for costs on indemnity basis refused.
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 55, 56, 59, 98
Uniform Civil Procedure Rules 2005 (NSW) r 12.7, 42.2
Cases Cited: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Category: Costs
Parties: Cristina Pirrello Nitopi (Plaintiff)
Giuseppe Nitopi (Defendant)
Representation:
Counsel:
Mr P Folino-Gallo (Plaintiff)
Mr H Stitt (Defendant)
Solicitors:
Prime Lawyers
Hunter Lawyers

File Number(s): 2015/94733

Judgment

HIS HONOUR: On 5 April 2018 the defendant sought an order pursuant to Rule 12.7 of the Uniform Civil Procedure Rules 2005 ("UCPR") that the plaintiff's Statement of Claim be dismissed for want of due dispatch. On that day I delivered ex tempore reasons for granting that application and making that order. There was also an order that the plaintiff pay the defendant's costs.
Counsel for the defendant then raised a number of issues on the question of costs. I indicated that I was minded to allow liberty to apply on notice if any further order as to costs was sought. At that point, counsel for the defendant asked for an order that costs be on an indemnity basis.
Counsel for the plaintiff indicated a difficulty in responding to such an application forthwith and suggested it was an issue that could be dealt with by way of written submissions. I agreed and set a timetable. Written submissions have since been received.

Defendant's submissions

It was contended in the defendant's written submissions that there were three bases for this Court to exercise its discretion to order costs on an indemnity basis: unexplained and substantial delay on the part of the plaintiff in prosecuting her claim against the defendant; the plaintiff's disobedience of court orders as to the filing of evidence and preparation of her case; and the fact that indemnity costs are not punitive but would compensate the defendant for the time, trouble and expense the plaintiff's actions have caused him.

Unexplained and substantial delay; disobedience of Court orders

Upon the hearing of the primary application I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 609
Decision Date: 07 May 2018

CaseChat Overview and Summary

The case of Nitopi v Nitopi involved a claim brought by Cristina Nitopi against Giuseppe Nitopi, which was dismissed by the court due to a lack of due dispatch, resulting in costs being awarded to Giuseppe. Cristina subsequently applied for costs on an indemnity basis, arguing that her delay in pursuing the proceedings was not sufficient to constitute delinquency warranting such costs. The central issue before the court was whether Cristina's conduct amounted to delinquency that justified indemnity costs and whether the court had lost the power to alter the costs order once it had been made. The court also considered whether it had become functus officio after making the initial costs order.

The court examined the circumstances leading to the dismissal of Cristina's claim, noting that the proceedings were delayed by three years, a factor that contributed to the dismissal. However, the court found no evidence that Cristina was responsible for any abuse of the court's processes. It was established that the initial order for costs did not need to be reduced to writing or formally entered, thus the court was not functus officio. Given that Cristina's actions did not meet the threshold for relevant delinquency and no abuse of process was shown, the court declined to grant indemnity costs.

Consequently, Cristina's application for costs on an indemnity basis was dismissed. The court held that the initial order for costs remained valid, and there was no basis to alter the costs order or to grant indemnity costs in these circumstances. The court's ruling underscored the importance of due dispatch in litigation and the need for evidence of abuse of process to warrant indemnity costs.

No further orders were made beyond the refusal of the indemnity costs application.

Orders