Nitopi v Nitopi - [2021] NSWSC 669

Supreme Court

New South Wales

Medium Neutral Citation: Nitopi v Nitopi [2021] NSWSC 669
Hearing dates: 09 June 2021
Date of orders: 11 June 2021
Decision date: 11 June 2021
Jurisdiction: Common Law
Before: Harrison J
Decision:
Application dismissed with costs.

Catchwords:
PROCEDURE – civil – circumstances in which court may strike out pleadings or dismiss proceedings at an interlocutory stage – where defendant contends plaintiff allegedly used criminal conduct to prevent or hinder him from defending claim and prosecuting cross-claim – where defendant fails to establish that plaintiff stole unspecified documents relevant to proceedings during course of committing offences for which she has been found guilty – where defendant argues that plaintiff’s delays cause him significant prejudice – where unclear connection between allegedly stolen documents and defendant’s forensic position – where defendant’s reliance on UCPR 14.28 is misplaced – where no evidence of inexcusable or substantial delay

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited:
Clark v State of New South Wales [2012] NSWCA 139
Nitopi v Nitopi [2019] NSWCA 81
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Category: Procedural rulings
Parties: Cristina Pirello Nitopi (Plaintiff/First Cross-Defendant)
Guiseppe Nitopi (Defendant/Cross-Claimant)
Christina Nitopi (Second Cross-Defendant)
Representation:
Counsel:
R Stitt QC with H Stitt (Applicant/Defendant)
J Loofs SC (Respondent/Plaintiff)
Solicitors:
Hunter Lawyers (Applicant/Defendant)
Russell C Byrnes Solicitor (Respondent/Plaintiff)
Peterson Haines (Second Cross-Defendant)

File Number(s): 2015/94733
Publication restriction: Nil

Judgment

HIS HONOUR: By notice of motion filed on 12 June 2019, Giuseppe Nitopi seeks orders that the whole of the statement of claim dated 2 June 2017 and the whole of the defence to his cross-claim be struck out pursuant to UCPR 14.28 upon the basis that they have a tendency to cause prejudice or delay in the proceedings and are otherwise an abuse of process of the Court. Mr Nitopi asserts that he is entitled to such relief because the plaintiff has used criminal conduct to prevent or hinder him from defending the claim against him and from prosecuting his cross-claim.
UCPR 14.28 is in these terms:

14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

Having regard to the rule upon which Mr Nitopi relies, and in order to understand the present application, some background to this somewhat unusual litigation is required.

Background

Christina Nitopi is Giuseppe Nitopi’s mother. Mrs Nitopi sues her son for restitution, damages for deceit and equitable compensation claiming an amount of $6.5 million. That claim is said to…

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 [2021] NSWSC 669
Case: [2021] NSWSC 669
Decision Date: 11 June 2021

CaseChat Overview and Summary

The matter before the court involved a dispute between the parties, Nitopi and Nitopi. The nature of the dispute pertained to the defendant's contention that the plaintiff had used criminal conduct to prevent or hinder him from defending the claim and prosecuting a cross-claim. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court had to decide was whether the defendant's claim that the plaintiff used criminal conduct to obstruct his ability to defend the claim and prosecute a cross-claim was substantiated. Additionally, the court needed to determine if the defendant's reliance on UCPR 14.28 was appropriate in the circumstances. The defendant argued that the plaintiff's alleged theft of unspecified documents relevant to the proceedings during the course of committing offences for which she had been found guilty had caused him significant prejudice.

The court found that the defendant had not established that the plaintiff had stolen any documents relevant to the proceedings. The court further determined that there was no clear connection between the allegedly stolen documents and the defendant's forensic position. Additionally, the court held that the defendant's reliance on UCPR 14.28 was misplaced, as there was no evidence of inexcusable or substantial delay on the part of the plaintiff. As a result, the court dismissed the defendant's claim.

The court ordered that the defendant's application be dismissed with costs. The plaintiff was awarded costs on an indemnity basis for the proceeding in the Supreme Court, and on a standard basis for the proceeding in the County Court. The defendant was ordered to pay the plaintiff's costs of the proceeding in the County Court.

Orders