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

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

The preferable order is for the plaintiff to pay the defendant's costs on the ordinary basis for the proceedings, except those costs that relate solely to a claim for a family provision order, with any common costs allocated to abandoned claims; the defendant may apply for indemnity costs after the conclusion of the...

Source-derived case information.

Parties
Plaintiff: Paola Toppi; Defendant: Walter Toppi
Jurisdiction
Australia
Judgment Date
29 October 2024
Procedural Posture
Probate/equity (costs) / Interlocutory Costs Determination After Partial Dismissal of Claims
Outcome
Costs ordered against plaintiff (except as relate solely to family provision claim); liberty to apply for indemnity basis after proceedings.
Legal Topics
Costs, Interlocutory Orders, Family Provision, Dismissal of Claims
Equity Probate Civil Procedure Costs Interlocutory Orders Family Provision Dismissal of Claims

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Parties

Paola Toppi

Plaintiff

Walter Toppi

Defendant

Procedural Posture

Probate/equity (costs) / Interlocutory Costs Determination After Partial Dismissal of Claims

Legal Issues

  1. 1 Appropriate allocation of costs after dismissal of claims except family provision order claim
  2. 2 Whether costs should be paid on ordinary or indemnity basis
  3. 3 Appropriate method for apportionment of common costs

Ratio Decidendi

The preferable order is for the plaintiff to pay the defendant's costs on the ordinary basis for the proceedings, except those costs that relate solely to a claim for a family provision order, with any common costs allocated to abandoned claims; the defendant may apply for indemnity costs after the conclusion of the proceedings.

Court Disposition

Costs ordered against plaintiff (except as relate solely to family provision claim); liberty to apply for indemnity basis after proceedings.

Orders

  • 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.
  • 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.