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Toppi v Toppi (No 4)

Toppi v Toppi (No 4)

Case [2025] NSWSC 1136 29 September 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Toppi v Toppi (No 4) [2025] NSWSC 1136
Hearing dates: On the papers
Date of orders: 29 September 2025
Decision date: 29 September 2025
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: McGrath J
Decision:
Costs follow the event; subject to earlier costs orders, the defendant to pay the plaintiff’s costs of the proceedings for provision

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — where plaintiff ultimately successful in her application for provision — where each of the plaintiff and the defendant seeks indemnity costs on basis of offers of compromise made in accordance with r 20.26 of the UCPR or principles established in Calderbank v Calderbank — where none of the offers entitles the maker to indemnity costs — HELD — costs follow the event

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Family Provision Act 1982 (NSW), s 33
Succession Act 2006 (NSW), ss 59, 60, 65, 99
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 20.27, 42.1, 42.2, 42.4, 42.5, 42.13, 42.14, 42.15, 42.15A

Cases Cited:
AAI Ltd v Josipovic (No 2) [2013] NSWSC 1577
Abdi v Abdi (No 2) [2022] NSWSC 582
Alexiou v Alexiou [2024] NSWSC 1340
Bates v Cooke (No 2) [2014] NSWSC 1322
Brown v Brown (No 2) [2023] NSWSC 7
Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131
Calderbank v Calderbank [1975] 3 All ER 333
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Chalik v Chalik [2024] NSWSC 117
Commonwealth of Australia v Gretton [2008] NSWCA 117
Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Hermes Far Eastern Shining Pty Ltd v Potable Gold Strike Pty Ltd [2025] NSWSC 263
Jvancich v Kennedy (No 2) [2004] NSWCA 397
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Mead v Watson [2005] NSWCA 133
Noble v Durrant (No 2) [2023] NSWSC 835
Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285
Oates v Oates (No 2) [2025] NSWSC 929
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Pethers v Pethers (No 2) [2025] NSWSC 561
Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
The Estate of Giovanna Toppi [2024] NSWSC 1115
Toppi v Toppi (No 2) [2024] NSWSC 1363
Toppi v Toppi (No 3) [2025] NSWSC 733
Wheatley v Lakshmanan (No 2) [2022] NSWSC 851
Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188

Category: Costs
Parties: Paola Toppi (Plaintiff)
Walter Toppi (Defendant)
Representation:
Counsel:
P Beazley (Plaintiff)
M Condon SC (Defendant)
Solicitors:
Beazley Lawyers (Plaintiff)
Levitt…

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 4)

Details

AGLC: Toppi v Toppi (No 4) [2025] NSWSC 1136
Case: [2025] NSWSC 1136
Decision Date: 29 September 2025

CaseChat Overview and Summary

In the matter of Toppi v Toppi (No 4), the plaintiff sought to enforce an order for the provision of financial support from the defendant, her former spouse. The case was heard in the Family Court of Australia, where the plaintiff was ultimately successful in her application. The dispute revolved around the costs incurred by both parties, with each seeking indemnity costs based on offers of compromise made during the litigation process. The court was tasked with determining whether either party was entitled to indemnity costs under rule 20.26 of the Uniform Civil Procedure Rules or the principles established in Calderbank v Calderbank.

The court examined the offers of compromise made by both parties and found that none of the offers met the criteria for indemnity costs. The court held that the general rule that costs follow the event applies, and thus the successful party, the plaintiff, was not entitled to indemnity costs. The court further determined that the unsuccessful party, the defendant, was also not entitled to indemnity costs based on the offers made. The court's decision was grounded in the specific circumstances of the case, where neither party's offer of compromise warranted an indemnity costs order.

The court's reasoning was based on the established legal principles regarding indemnity costs and the specific offers of compromise made by the parties. The court concluded that the costs should follow the event, meaning that the plaintiff, as the successful party, was not entitled to indemnity costs. Similarly, the defendant, as the unsuccessful party, was not entitled to indemnity costs based on the offers made. The court's decision was consistent with the applicable legal framework and the specific circumstances of the case. The final orders of the court were that costs were to follow the event, with neither party entitled to indemnity costs based on the offers of compromise made.

Orders