Toppi v Toppi (No 2) - [2024] NSWSC 1363

Supreme Court

New South Wales

Medium Neutral Citation: Toppi v Toppi (No 2) [2024] NSWSC 1363
Hearing dates: On the papers (last submissions received 11 October 2024)
Date of orders: 29 October 2024
Decision date: 29 October 2024
Jurisdiction: Equity - Probate List
Before: Pike J
Decision:
(1) The plaintiff pay, on the ordinary basis, the defendant’s costs of the proceedings other than to the extent that they relate solely to a claim for a family provision order.
(2) The defendant has liberty to apply, at the conclusion of the proceedings, that the costs payable under order 1, be payable on the indemnity basis.

Catchwords:
COSTS – interlocutory costs order – costs thrown away by reason of vacation of hearing date and abandonment of claims – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules 2005 (NSW) r 42.20

Cases Cited:
Mao v Bao (No 3) [2023] NSWSC 261
Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88
Odelli v Gabrielle (No 2) [2024] NSWSC 768
The Estate of Giovanna Toppi [2024] NSWSC 1115

Texts Cited:
Nil

Category: Costs
Parties: Paola Toppi (Plaintiff)
Walter Toppi (Defendant)
Representation:
Counsel:
M Pesman SC with N Allan (Plaintiff)
M Condon SC with R Bianchi (Defendant)
Solicitors:
Beazley Lawyers (Plaintiff)
Levitt Robinson Solicitors (Defendant)

File Number(s): 2021/00323980
Publication restriction: Nil

JUDGMENT

These proceedings concern the estate of the late Giovanna Toppi, who passed away on 3 November 2021.
The final hearing of these proceedings was due to run before me for nine days, commencing on 26 August 2024.
On 21 August 2024, I made the following orders:

6. Dismiss all claims pleaded by the plaintiff:
a. except prayers 4-6 of the Amended Statement of Claim filed 22 November 2022 (to the extent that they relate to a claim for a family provision order); and
b. on the basis that the plaintiff is not entitled to:
i. bring fresh proceedings in respect of the causes of action so dismissed; and
ii. claim any relief, in respect of the causes of action so dismissed, in any subsequent proceedings in this Court or any other court.

7. Note that Paola Toppi's claim for a family provision order remains to be determined.
…
13. Reserve all questions of costs.

On 29 August 2024, for reasons explained in The Estate of Giovanna Toppi [2024] NSWSC 1115 (my Earlier Judgment), I determined that the plaintiff should have leave to rely on certain late-served evidence and that the hearing dates be vacated.
On 30 August 2024, I made the following orders:

6. Direct the parties to provide to the associate to Pike J submissions as to costs of the claims which have been abandoned as follows:
a. The defendant by 6 September 2024;
b. The plaintiff by 13 September 2024; and
c. The defendant in reply by 20 September 2024.

7. The parties are to inform the associate to Pike J by 27 September 2024 if they agree…

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 Toppi v Toppi (No 2)

Details

AGLC: Toppi v Toppi (No 2) [2024] NSWSC 1363
Case: [2024] NSWSC 1363
Decision Date: 29 October 2024

CaseChat Overview and Summary

The court was asked to determine an issue of costs in a family law matter between Toppi and Toppi. The parties had been engaged in proceedings for some time, and a previous hearing had been scheduled. However, the hearing was vacated due to the abandonment of certain claims by one of the parties. The remaining party sought an order for costs, arguing that the other party's actions had caused the hearing to be vacated, leading to wasted costs. The court had to determine whether the costs incurred by the party who abandoned their claims should be borne by that party, and if so, to what extent.

The central legal issue before the court was whether the costs incurred by the party who abandoned their claims should be considered as costs thrown away by reason of the vacation of the hearing date. The court needed to consider the circumstances in which the hearing was vacated and whether the abandonment of the claims was reasonable and justified. The court also had to consider the principles of costs in family law proceedings and whether there was any question of principle involved in the decision.

The court found that the costs incurred by the party who abandoned their claims were indeed costs thrown away by reason of the vacation of the hearing date. The court held that the abandonment of the claims was not reasonable or justified, and that the other party had no choice but to vacate the hearing. The court held that there was no question of principle involved in the decision, and that the costs should be borne by the party who abandoned their claims. The court ordered that the costs be paid by that party.

The court did not make any further orders, and the case was concluded with the costs order. The decision serves as a reminder to parties in family law proceedings to carefully consider the implications of abandoning claims and the potential consequences for costs. The decision also highlights the importance of the principles of costs in family law proceedings and the need for parties to act reasonably and in good faith.

Orders