Nitopi v Nitopi - [2016] NSWSC 962

Supreme Court

New South Wales

Medium Neutral Citation: Nitopi v Nitopi [2016] NSWSC 962
Hearing dates: 28 June 2016
Date of orders: 28 June 2016
Decision date: 28 June 2016
Jurisdiction: Common Law
Before: Hall J
Decision:
Plaintiff’s Notice of Motion seeking to amend Statement of Claim – granted
Defendant’s Notice of Motion seeking to set aside subpoena – refused

Catchwords: PRACTICE AND PROCEDURE – interlocutory issues – statement of claim – late amendments – alleged delay – no prejudice – new proposed causes of action fall within the existing factual substratum of the case as previously pleaded – withdrawal of certain statements made by the plaintiff not a reason to refuse amendment sought – amendments to the statement of claim allowed – PRACTICE AND PROCEDURE – interlocutory issues – setting aside subpoena – relevance – subpoena was not a substitute for discovery – was not impermissible “fishing” – it was “on the cards” that the documents sought had relevance to the loan transaction the subject of the proceedings – application refused – COSTS
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Antoniadis v TCN Channel 9 Pty Ltd (1998) 44 NSWLR 682
Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666
Trade Practices Commission v Arnotts (No 2) (1989) 88 ALR 90
Category: Procedural and other rulings
Parties: Cristina Pirrello Nitopi (Plaintiff)
Giuseppe Nitopi (Defendant)
Representation:
Counsel:
J Ireland QC (Plaintiff)
H Stitt (Defendant)
Solicitors:
Brander Smith McKnight (Plaintiff)
Hunter Lawyers (Defendant)

File Number(s): 2015/94733

Judgment (extempore)

This judgment relates to two applications respectively by the plaintiff and the defendant.
On 17 June 2016 the defendant filed a notice of motion seeking orders as follows:

“1. That the subpoena filed by the plaintiff in these proceedings on the Australia and New Zealand Banking Group (ANZ) on 6 June 2016 be set aside pursuant to r 33.4 of the UCPR.
2. That access to any documents produced by ANZ under the subpoena filed by the plaintiff on 6 June 2016 be stayed until the Court makes a final determination regarding this notice of motion.
3. The plaintiff to pay the defendant’s costs.”

In support of the notice of motion the defendant relied upon the affidavit of Salvatore Parisi, solicitor, sworn on 17 June 2016. A copy of the subpoena to produce filed on 6 June 2016 was annexure B to Mr Parisi’s affidavit.
The schedule to the subpoena requires production of documents as set out in paras 1, 2, 3 and 4 of the schedule.

1. Copies of all statement issued by ANZ Bank for all accounts of Libra Finance Pty Ltd or Libra Industrial Pty Ltd with ANZ Bank maintained or operated within all or any part of the period between January 1999 and December 2002.
2. Copies of all statements issued by ANZ Bank for all accounts of Cristina Nitopi maintained or operated with ANZ Bank within all or any part of the period between…

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 [2016] NSWSC 962
Case: [2016] NSWSC 962
Decision Date: 28 June 2016

CaseChat Overview and Summary

In the case of Nitopi v Nitopi, the dispute before the court centred on the plaintiff's request to amend the statement of claim and to set aside a subpoena issued by the defendant. The plaintiff sought to introduce new causes of action and amend certain statements within the existing factual matrix of the case, which had been previously pleaded. Additionally, the plaintiff applied to set aside a subpoena issued by the defendant, arguing that it was irrelevant and amounted to an improper fishing expedition. The defendant opposed the amendments and the setting aside of the subpoena, asserting that the plaintiff's requests were untimely and prejudicial, and that the subpoena was both relevant and not an abuse of process.

The court was required to determine whether the plaintiff's amendments to the statement of claim, which were proposed after the relevant limitation period, should be permitted. The court also had to consider whether the amendments were within the existing factual matrix and whether they prejudiced the defendant. Furthermore, the court had to decide whether the subpoena issued by the defendant was relevant to the proceedings and not an abuse of process. The court evaluated these issues by examining the nature of the proposed amendments, the timing of the requests, the potential prejudice to the defendant, and the relevance of the documents sought by the subpoena.

In its decision, the court held that the plaintiff's amendments to the statement of claim should be allowed, as they did not prejudice the defendant and fell within the existing factual matrix of the case. The court found that the new causes of action were not entirely new but rather variations on the existing claims. Additionally, the court ruled that the withdrawal of certain statements by the plaintiff did not justify refusing the amendment sought. Regarding the subpoena, the court determined that it was not an abuse of process and was relevant to the proceedings, as it was plausible that the documents sought had a connection to the loan transaction at the heart of the case. Consequently, the court refused the application to set aside the subpoena. The court also awarded costs against the plaintiff for the unsuccessful application to set aside the subpoena.

The court's final orders allowed the plaintiff's amendments to the statement of claim and refused the application to set aside the subpoena. The plaintiff was also ordered to pay costs to the defendant for the unsuccessful application to set aside the subpoena.

Orders