Nitopi v Nitopi

1. [1]

   HIS HONOUR: By notice of motion filed on 12 June 2019, Giuseppe Nitopi seeks orders that the whole of the statement of claim dated 2 June 2017 and the whole of the defence to his cross-claim be struck out pursuant to UCPR 14.28 upon the basis that they have a tendency to cause prejudice or delay in the proceedings and are otherwise an abuse of process of the Court. Mr Nitopi asserts that he is entitled to such relief because the plaintiff has used criminal conduct to prevent or hinder him from defending the claim against him and from prosecuting his cross-claim.

2. [2]

   UCPR 14.28 is in these terms:

3. [3]

   Having regard to the rule upon which Mr Nitopi relies, and in order to understand the present application, some background to this somewhat unusual litigation is required.

Background

1. [4]

   Christina Nitopi is Giuseppe Nitopi’s mother. Mrs Nitopi sues her son for restitution, damages for deceit and equitable compensation claiming an amount of $6.5 million. That claim is said to arise out of a series of oral agreements made between Mrs Nitopi and her son between 1999 and 2009 pursuant to which Mrs Nitopi, at the request of Mr Nitopi, borrowed $5,100,000 from the ANZ Bank upon the security of her property at 280 Garfield Road, Riverstone. Mrs Nitopi alleges that she then advanced that money in various tranches to Mr Nitopi to assist him with his personal business concerns. It is alleged that Mr Nitopi agreed that in consideration of these advances to him, he would make all repayments to the bank, presumably including principal and interest, and effectively keep his mother indemnified against any claim that the bank may have against her for the recovery of her borrowings. Mrs Nitopi alleges that in all of this she was misled and deceived by her son who, in breach of the alleged agreements, did not repay any monies to the bank in discharge of her indebtedness, with the result that the bank appointed a receiver of the property and sold it to realise its security.

2. [5]

   Mr Nitopi denies these claims or that he ever received any monies from his mother pursuant to any such agreements or indeed at all. Moreover, Mr Nitopi has filed a further amended cross-claim dated 14 June 2017 against his mother alleging in general terms that, contrary to her allegations, he and his sister agreed to develop the property in return for a share of the amount by which the value of the property was thereby increased. Mr Nitopi alleges that he contributed $1,000,000 of his own money to that endeavour. He therefore claims that he is entitled to the repayment of monies expended by him, as well as damages for breach of contract in an amount exceeding $5,000,000.

3. [6]

   The proceedings have a long and somewhat languid history in this Court since their commencement in 2015, with extended periods of relative inaction interrupted by occasional enthusiastic episodes or litigious fervour. Among other things that have occurred, on 5 April 2018 R A Hulme J ordered that the proceedings be dismissed on Mr Nitopi’s application to dismiss his mother’s claim for want of due despatch. That decision was set aside on 18 April 2019 by the Court of Appeal: see Nitopi v Nitopi [2019] NSWCA 81. In some respects, Mr Nitopi’s present concerns seek to reprise his application to R A Hulme J inasmuch as he persists in maintaining that his mother’s egregious delays continue to cause him significant prejudice.

4. [7]

   Mr Nitopi alleges that on 22 July 2017, important documents were stolen from his home in Drummoyne. In his 12 June 2019 affidavit, Mr Nitopi described these documents as “the majority of personal and business records since 1998”. Unfortunately, little detail about these documents is provided. For example, the best that can be said is to be found in paragraphs 13 to 15 of Mr Nitopi's affidavit as follows:

5. [8]

   Mr Nitopi’s mother has recently been found guilty by a Magistrate on charges of break and enter and conspiracy. Mr Nitopi maintains that Mrs Nitopi’s convictions relate to a break and enter at his home and that the documents that were stolen from him were stolen by her.

6. [9]

   In order to make good that contention, Mr Nitopi relies upon the affidavit of his solicitor, Sam Parisi, sworn on 31 May 2021. Mr Parisi deposes to the fact that, after an investigation by the police, criminal charges were laid against Mrs Nitopi and her brother Michael Portello. A Court Attendance Notice annexed to his affidavit contains details of nine offences, including a charge that Mrs Nitopi was an accessory before the fact to attempted break-ins and break-ins at Mr Nitopi’s Drummoyne premises in June, July, August and December 2017. Mrs Nitopi is scheduled to be sentenced in the Burwood Local Court on 21 June 2021.

7. [10]

   In support of Mr Nitopi’s complaints in this application about his mother’s delays, Mr Nitopi relies on the following paragraphs of Mr Parisi’s affidavit as follows:

8. [11]

   In the hearing of this application, neither Mr Nitopi nor Mr Parisi was cross-examined. Nor was any objection taken to their affidavits. It is therefore reasonable for present purposes to infer that Mrs Nitopi does not contend that Mr Nitopi did not lose certain documents in the break-ins to his Drummoyne premises and that some of them at least were documents upon which Mr Nitopi might wish to rely in these proceedings.

9. [12]

   However, Mrs Nitopi does not accept either that she was involved in these breaks-ins or attempted break-ins. Even though it is accepted by her counsel that she has been found guilty of these offences, I am informed that Mrs Nitopi intends to appeal to the District Court against her convictions. I remain unaware of the basis for any such challenge.

10. [13]

    Mr Nitopi’s application relies upon two decisions of this Court: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 and Clark v State of New South Wales [2012] NSWCA 139. Palavi concerned a finding that the plaintiff had deliberately destroyed two mobile phones belonging to her that were discoverable and relevant to a defence of truth pleaded in her claim for damages for defamation. Clark concerned the destruction of a cassette tape by the plaintiff which would have been determinative of an allegation by the plaintiff that a policeman had solicited a bribe from him in order to refrain from charging Mr Clark.

11. [14]

    Referring to the decision of Johnson J at first instance, the Court of Appeal in Clark said this:

12. [15]

    Unlike this case, Clark concerned an application made to Johnson J for an order staying or dismissing the proceedings generally pursuant to UCPR 13.5. In Palavi, the issue was whether the trial judge was correct to strike out certain imputations in the plaintiff’s statement of claim upon the basis of her destruction of the mobile phones.

13. [16]

    In these circumstances, Mrs Nitopi submitted that I am essentially being asked on an interlocutory basis whether she has engaged in serious criminal conduct and was thereby responsible for the destruction of the material about which Mr Nitopi complains. The evidence about that goes no further than that Mrs Nitopi has been found guilty of two of nine charges referred to in a Court Attendance Notice which she proposes in any event to contest. Mr Nitopi has failed to identify the material, in the form of documents that he claims were stolen, with precision and none of Mr Nitopi’s evidence goes any way towards demonstrating the relationship that these documents are alleged to have to his defence of Mrs Nitopi’s claim or the prosecution of his cross-claim. Nothing in evidence before me identifies or establishes the existence of a critical or essential connection between these vaguely described documents and Mr Nitopi’s forensic position.

14. [17]

    It also seems to me that Mr Nitopi’s reliance on UCPR 14.28 is misplaced. He does not attack the adequacy of the current version of the statement of claim or contend that the pleading discloses no reasonable cause of action or that the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings. He also does not claim that the pleading is otherwise an abuse of the process of the court. Mr Nitopi is really asking for a stay of the proceedings upon the basis that his mother’s criminal conduct, yet finally to be determined by a foreshadowed appeal and allegedly involving the destruction of documents that are essential to his position in this litigation, even though not identified with any precision, parcelled up as an application for dismissal for want of due despatch.

15. [18]

    In this last respect, Mr Nitopi continues to assert that his mother is in effect guilty of inexcusable and substantial delay. The evidence about that is less than satisfactory. In any event, the fact that R A Hulme J’s order was set aside by the Court of Appeal means that any delays up to that time can be disregarded. The significance of any post-18 April 2018 delays was considered and rejected on 25 September 2020 by Registrar Jones in her determination of a similar application, largely in the light of the criminal charges that Mrs Nitopi was then facing.

16. [19]

    In my opinion it is instructive to recall the following observations of the Court of Appeal when considering R A Hulme J’s order dismissing the proceedings:

17. [20]

    It seems to me that there are several reasons why the present application cannot succeed. Fundamentally, Mr Nitopi has not established that his mother’s criminal convictions equate to the destruction of his documents by her, even assuming favourably to him that he has satisfied me what those documents are and that they are critical or relevant to him in these proceedings. More generally, particularly considering the cautious approach adopted by the Court of Appeal in 2019, it is not appropriate at an interlocutory stage to strike out Mrs Nitopi’s pleadings or dismiss the proceedings. Such a course should only be contemplated in the clearest of cases, of which the present case is not an example.

18. [21]

    It follows that Mr Nitopi’s application should be dismissed with costs.