Nitopi v Nitopi (No 2)

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.