Nitopi v Nitopi (No 2)

Case [2022] NSWCA 199

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nitopi v Nitopi (No 2) [2022] NSWCA 199
Hearing dates: On the papers
Date of orders: 5 October 2022
Decision date: 05 October 2022
Before: Bell CJ at [1]; Ward P at [2]; White JA at [23]
Decision:

1.   In lieu of the orders made at [46](3)(b)-(c) as to the costs of the proceedings at first instance as between the plaintiff and the third defendant, order that:

(a)   the costs of the plaintiff be paid out of the estate of the late Edigio Nitopi on the indemnity basis; and

(b)   the plaintiff pay 90% of the third defendant’s costs of the proceedings on the ordinary basis and be entitled to indemnity from the estate of the late Edigio Nitopi in respect of his liability.

Catchwords:

COSTS –Party/Party – Indemnity

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.10

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Calderbank v Calderbank [1975] 3 All ER 333

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373

Estate of Nitopi (No 2) [2021] NSWSC 748

Estate of Nitopi (No 3) [2021] NSWSC 1136

Hansen (t/as Derrawee Pastoral Company) v Monterey (Coolah) Pty Ltd [2012] NSWSC 1383

Maxwell v Maxwell (No 2) [2022] NSWSC 1146

Nitopi v Nitopi [2022] NSWCA 162

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Windsurfing International Inc v Petit [1987] AIPC 90-441

Category:Costs
Parties: Cristina Nitopi (Appellant)
Giuseppe Nitopi (Respondent)
Representation:

Counsel:
DL Cook SC with G Ng (Appellant)
L Ellison SC with D Liebhold (Respondent)

Solicitors:
Byrnes Lawyers (Appellant)
Hunter Lawyers (Respondent)
File Number(s): 2021/189912
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:

[2021] NSWSC 748

Date of Decision:
25 June 2021
Before:
Parker J
File Number(s):
2014/327528

Judgment

  1. BELL CJ: I agree with the reasons of Ward P and White JA, and the orders proposed by Ward P.

  2. WARD P: On 26 August 2022, this Court published reasons for judgment in an appeal relating to six impugned inter vivos transactions by the now deceased Edigio Nitopi (see Nitopi v Nitopi [2022] NSWCA 162). The proceeding at first instance was brought by Giuseppe Nitopi (the respondent in this Court), he being one of the deceased’s three children and the administrator of the estate of the deceased. A representative order was made, on 17 October 2018, pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW), that the respondent represent the estate on the basis that all and any fruits of the litigation would be for the benefit of the estate of the deceased (being a fund to which each of the respondent and the appellant, Cristina, his sister, was entitled as to one-third).

  3. At first instance, the appellant was held liable to repay the sum…

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Details
AGLC
Nitopi v Nitopi (No 2) [2022] NSWCA 199
Case
[2022] NSWCA 199
Decision Date

CaseChat Overview and Summary

The appeal concerned the costs orders made in proceedings between the plaintiff, Mr Nitopi, and the third defendant, Mr Nitopi, in the Supreme Court of New South Wales. The dispute involved complex family provision claims and related litigation concerning the estate of the late Edigio Nitopi. The Court of Appeal, comprising Bell CJ, Ward P, and White JA, was required to determine the appropriate basis for awarding costs as between the plaintiff and the third defendant, and the extent to which the estate should bear those costs.

The primary legal issue before the Court of Appeal was whether the costs orders made at first instance, which had directed the plaintiff to pay the third defendant's costs on an indemnity basis, were appropriate. The court also considered the extent to which the plaintiff should be entitled to indemnity from the estate for any costs he was ordered to pay. This involved an assessment of the conduct of the parties and the nature of the litigation in determining whether an indemnity basis for costs was warranted, or if a more standard ordinary basis was appropriate.

The Court of Appeal varied the costs orders made at first instance. It ordered that the plaintiff's costs of the proceedings be paid out of the estate of the late Edigio Nitopi on an indemnity basis. Conversely, the plaintiff was ordered to pay 90% of the third defendant's costs of the proceedings on the ordinary basis. However, the plaintiff was granted an entitlement to indemnity from the estate in respect of this liability, effectively shifting the ultimate financial burden of these costs to the estate.

Orders

Orders of the court

1. In lieu of the orders made at [46](3)(b)-(c) as to the costs of the proceedings at first instance as between the plaintiff and the third defendant, order that:

(a) the costs of the plaintiff be paid out of the estate of the late Edigio Nitopi on the indemnity basis; and

(b) the plaintiff pay 90% of the third defendant’s costs of the proceedings on the ordinary basis and be entitled to indemnity from the estate of the late Edigio Nitopi in respect of his liability.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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