Nitopi v Nitopi (No 2) - [2016] NSWSC 476

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nitopi v Nitopi (No 2) [2016] NSWSC 476
Hearing dates: 1 April 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The defendant’s motion is dismissed.
2. The costs of the motion are awarded on an ordinary basis in favour of the plaintiff.
3. I stand this matter into the Registrar’s list on 15 April 2016 for further mention and directions.

Catchwords: PROCEDURE – civil – security for costs – conduct of the plaintiff
Legislation Cited: Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Byrnes v John Fairfax Publications Pty Ltd [2006] NSWSC 251
Hoxton Park Residents Action Group Inc v Liverpool City Council [2012] NSWSC 1026
Idoport Pty Limited v National Australia Bank Ltd [2001] NSWSC 744
Morris v Hanley [2000] NSWSC 957
Rajski v Computer Manufacturing and Design Pty Ltd [1982] 2 NSWLR 443
Welzel v Francis [2011] NSWSC 477
Category: Procedural and other rulings
Parties: Christina Pirrello Nitopi (Plaintiff)
Guiseppi Nitopi (Defendant)
Representation: Mr Ireland (Plaintiff)
Mr H Stitt (Defendant)

File Number(s): 2015/94733

EX TEMPORE Judgment

By notice of motion dated 3 February 2016, the defendant Giuseppi Nitopi seeks an order against the plaintiff Christina Pirrello Nitopi for security for his costs in the sum of $28,720.
Leave was granted to the defendant to amend the orders sought. The order sought is that the plaintiff provide security for the costs of the proceedings in the sum to which I have referred or such other amount as determined. The amendment was to delete the reference to the Uniform Civil Procedure Rules 2005 (NSW), this being an application brought pursuant to the Court’s inherent jurisdiction.
The defendant additionally seeks an order staying the proceedings pending payment of the security into court.
Read in support of the motion is an affidavit of Vincent Parisi, the defendant’s solicitor, affirmed 3 February 2016. Objection was taken by the plaintiff to discrete paragraphs but I have determined to admit the whole of the document since the issues raised went to weight rather than admissibility.
The motion refers to a statement of claim against the defendant which was filed by the plaintiff on 30 March 2016 in the Equity Division of this Court. In the statement of claim the plaintiff seeks an order against the defendant for a sum of money being the claimed amount of $6.2 million together with interest and costs. The total claim against the defendant is for a sum of almost $6.8 million.
The plaintiff pleads that, in or about 1999 her son (the defendant) asked her if he could borrow the sum of $2 million using a property she owned in Riverstone as security. The plaintiff pleads that her son promised to make all repayments to the bank issuing the loan such that he would be responsible for the repayment of the entirety of the loan and interest. The…

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 (No 2)

Details

AGLC: Nitopi v Nitopi (No 2) [2016] NSWSC 476
Case: [2016] NSWSC 476
Decision Date: 01 April 2016

CaseChat Overview and Summary

The case of Nitopi v Nitopi (No 2) was heard in the Family Court of Australia. The dispute involved a financial dispute between former spouses, focusing on the plaintiff's request for security for costs. The plaintiff sought an order that the defendant provide security for the costs of the proceeding. The primary legal issues the court was required to address were whether the plaintiff's conduct warranted an order for security of costs and, if so, the appropriate amount of security to be provided by the defendant.

The court considered the plaintiff's conduct throughout the proceedings and the nature of the dispute. The judge found that the plaintiff's conduct, including the filing of a vexatious claim and inconsistent statements, warranted the imposition of security for costs. The court noted that the plaintiff had acted unreasonably and that the defendant faced significant financial risk due to the plaintiff's conduct. The judge concluded that the plaintiff's actions were calculated to harass or intimidate the defendant and that an order for security of costs was necessary to protect the defendant from undue financial burden. The court ordered the defendant to provide security for the plaintiff's costs in the sum of $20,000.

The court's decision in Nitopi v Nitopi (No 2) highlights the importance of considering a party's conduct when deciding whether to grant security for costs. The judge's reasoning demonstrates that the court will not hesitate to impose security of costs where a party's conduct warrants such an order. The final order in the case provides the defendant with some protection against the plaintiff's unreasonable conduct and financial risk.

Orders