Nitopi v Nitopi - [2019] NSWCA 81

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nitopi v Nitopi [2019] NSWCA 81
Hearing dates: 28 March 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Before: Macfarlan JA at [1];
Meagher JA at [35];
McCallum JA at [36]
Decision:
(1) Allow the appeal.
(2) Dismiss the appellant’s motion for leave to adduce fresh evidence.
(3) Set aside the orders made at first instance on 5 April 2018 ordering the dismissal of the statement of claim and ordering the appellant to pay the respondent’s costs of the proceedings.
(4) Dismiss the respondent’s motion filed in the Common Law Division on 27 March 2018.
(5) Order the respondent to pay the appellant’s costs of that motion and of the appeal, including the application for leave to appeal.

Catchwords: APPEAL – dismissal of proceedings for want of prosecution – appeal by leave – whether exercise of discretion miscarried
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 12.10, 14.23
Cases Cited: Birkett v James [1978] AC 297
Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325
State of New South Wales v Plaintiff A [2012] NSWCA 248
Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432
Category: Principal judgment
Parties: Cristina Pirrello Nitopi (Appellant)
Giuseppe Nitopi (Respondent)
Representation:
Counsel:
D Cook SC (Appellant)
H W M Stitt / J Tsang (Respondent)
Solicitors:
David Leamey (Appellant)
Hunter Lawyers (Respondent)

File Number(s): CA 2018/137786
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Date of Decision:

5 April 2018

Before:

R A Hulme J

File Number(s):

2015/94733

headnote

[This headnote is not to be read as part of the judgment]

Ms Cristina Nitopi, the appellant, appealed from a decision of a judge of the Common Law Division to dismiss her statement of claim pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) on the ground that she had not prosecuted her proceedings with due despatch.

The appellant claimed restitution, damages for deceit and equitable compensation from her son, Mr Giuseppe Nitopi, the respondent, in the amount of $6.5 million plus interest. She alleged that in June 1999, and at subsequent times, she and the respondent agreed that the appellant would obtain bank loans secured over her property and that the respondent would apply the borrowed monies to his business interests and would make all necessary repayments and interest payments.

The respondent denied that this agreement was made. The respondent instead alleges that he and the appellant agreed that he would assist the appellant to obtain bank loans secured over the property and would develop and manage the property for the benefit of the appellant.

By cross-claim, the respondent claims damages from the appellant and second-cross-defendant.

On 5 April 2018 the primary judge dismissed the appellant’s statement of claim for want of due despatch. The issue on appeal was whether the primary judge’s exercise…

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.

Continue reading Nitopi v Nitopi

Details

AGLC: Nitopi v Nitopi [2019] NSWCA 81
Case: [2019] NSWCA 81
Decision Date: 18 April 2019

CaseChat Overview and Summary

The appeal concerned the dismissal of proceedings for want of prosecution. The appellant sought to appeal the decision of the primary judge, who had dismissed the appellant's statement of claim and ordered the appellant to pay the respondent's costs. The Court of Appeal granted leave to appeal.

The central legal issue before the Court of Appeal was whether the primary judge had erred in the exercise of their discretion by dismissing the proceedings for want of prosecution. This involved an assessment of whether the delay in prosecuting the claim was inordinate and inexcusable, and whether the respondent had suffered prejudice as a result of that delay.

The Court of Appeal found that the primary judge had miscarried in the exercise of their discretion. The Court determined that the delay, while significant, was not inordinate or inexcusable in the circumstances. Furthermore, the Court found that the respondent had not demonstrated sufficient prejudice to warrant the drastic step of dismissing the appellant's claim. Consequently, the appeal was allowed, the orders of the primary judge were set aside, and the respondent was ordered to pay the appellant's costs of the appeal. The appellant's motion for leave to adduce fresh evidence was dismissed.

Orders

Orders of the court

(1) Allow the appeal.

(2) Dismiss the appellant’s motion for leave to adduce fresh evidence.

(3) Set aside the orders made at first instance on 5 April 2018 ordering the dismissal of the statement of claim and ordering the appellant to pay the respondent’s costs of the proceedings.

(4) Dismiss the respondent’s motion filed in the Common Law Division on 27 March 2018.

(5) Order the respondent to pay the appellant’s costs of that motion and of the appeal, including the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Nitopi v Nitopi [2019] NSWCA 81
Hearing dates:	28 March 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Before:	Macfarlan JA at [1]; Meagher JA at [35]; McCallum JA at [36]
Decision:	(1) Allow the appeal. (2) Dismiss the appellant’s motion for leave to adduce fresh evidence. (3) Set aside the orders made at first instance on 5 April 2018 ordering the dismissal of the statement of claim and ordering the appellant to pay the respondent’s costs of the proceedings. (4) Dismiss the respondent’s motion filed in the Common Law Division on 27 March 2018. (5) Order the respondent to pay the appellant’s costs of that motion and of the appeal, including the application for leave to appeal.
Catchwords:	APPEAL – dismissal of proceedings for want of prosecution – appeal by leave – whether exercise of discretion miscarried
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Limitation Act 1969 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 12.10, 14.23
Cases Cited:	Birkett v James [1978] AC 297 Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 State of New South Wales v Plaintiff A [2012] NSWCA 248 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432
Category:	Principal judgment
Parties:	Cristina Pirrello Nitopi (Appellant) Giuseppe Nitopi (Respondent)
Representation:	Counsel: D Cook SC (Appellant) H W M Stitt / J Tsang (Respondent) Solicitors: David Leamey (Appellant) Hunter Lawyers (Respondent)
File Number(s):	CA 2018/137786
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Date of Decision: 5 April 2018 Before: R A Hulme J File Number(s): 2015/94733