Nitopi v Nitopi (No 2) [2022] NSWCA 199

Nitopi v Nitopi (No 2) [2022] NSWCA 199

Where litigation is brought by the estate's administrator and there is reasonable doubt as to the validity of impugned transactions, the administrator's costs are paid out of the estate on the indemnity basis; where the defendant is substantially successful in resisting the majority of claims, the administrator should pay a proportion of the defendant’s costs, recoverable by way of indemnity from the estate.

Parties
Appellant: Cristina Nitopi; Respondent: Giuseppe Nitopi
Jurisdiction
Australia
Judgment Date
05 October 2022
Procedural Posture
Appeal / Determination of Costs Following Partial Success of Appeal
Outcome
Varied orders as to costs at first instance; administrator to pay 90% of appellant’s costs, both parties to be indemnified from estate
Legal Topics
Costs, Party/party Costs, Indemnity Costs, Estate Litigation, Unconscionable Dealing
Civil Procedure Costs Party/party Costs Indemnity Costs Estate Litigation Unconscionable Dealing

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Parties

Cristina Nitopi

Appellant

Giuseppe Nitopi

Respondent

Procedural Posture

Appeal / Determination of Costs Following Partial Success of Appeal

Legal Issues

  1. 1 Proper apportionment of costs in estate litigation following partial success on appeal
  2. 2 Whether costs should be paid out of the estate or by parties personally
  3. 3 Effect of Calderbank offer on costs orders

Ratio Decidendi

Where litigation is brought by the estate's administrator and there is reasonable doubt as to the validity of impugned transactions, the administrator's costs are paid out of the estate on the indemnity basis; where the defendant is substantially successful in resisting the majority of claims, the administrator should pay a proportion of the defendant’s costs, recoverable by way of indemnity from the estate.

Court Disposition

Varied orders as to costs at first instance; administrator to pay 90% of appellant’s costs, both parties to be indemnified from estate

Orders

  • The costs of the plaintiff (respondent/administrator) be paid out of the estate of the late Edigio Nitopi on the indemnity basis.
  • The plaintiff (respondent/administrator) pay 90% of the third defendant's (appellant Cristina Nitopi’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.