Toppi v Toppi (No 2)

1. [1]

   These proceedings concern the estate of the late Giovanna Toppi, who passed away on 3 November 2021.

2. [2]

   The final hearing of these proceedings was due to run before me for nine days, commencing on 26 August 2024.

3. [3]

   On 21 August 2024, I made the following orders:

4. [4]

   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.

5. [5]

   On 30 August 2024, I made the following orders:

6. [6]

   These reasons concern the appropriate costs order to be made now, as a result of the claims dismissed by virtue of the orders made on 21 August 2024. In this regard, the defendant indicated that he did not object to the issue being determined on the papers. The plaintiff did not respond to an email from my chambers for the plaintiff to indicate her position.

7. [7]

   These reasons assume familiarity with my Earlier Judgment, which sufficiently sets out the background to the matter.

8. [8]

   The defendant (Walter) contended that the appropriate costs order was for the plaintiff (Paola) to pay (on the ordinary basis):

9. [9]

   Walter was unable to press for indemnity costs at this stage because the application for indemnity costs would rely on matters he would like to put into evidence which cannot be done until after the final determination of the proceedings.

10. [10]

    Walter’s contention was that, the Court having made an order for dismissal of certain claims, there was no reason for the Court to otherwise order than that the plaintiff should pay the defendant’s costs of the proceedings to the extent to which they have been dismissed: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.20.

11. [11]

    In support of the first alternative set out above – that Paola should pay all of the costs to date – Walter contended that very little of the affidavit material served before mid-August 2024 has any direct relevance to the only extant claim – the family provision claim. Many affidavits served on behalf of Paola, and to which Walter responded, are no longer relevant. The various directions hearings have all been wasted, because Paola has had to resubmit all her evidence afresh. It was also contended by Walter that it may be difficult for an assessing officer to determine which evidence has arguable relevance to the family provision claim.

12. [12]

    The approach taken by Paola was to seek to identify the previously served affidavit material that Paola was no longer relying on and the material that Walter would no longer need to rely on and to contend that Walter should have his costs of responding to Paola’s wasted material and the costs of preparing his wasted material.

13. [13]

    In reply, Walter contended that justice would not be done by considering costs by reference to specific pleadings and affidavits. Several reasons were provided. Walter also contended that he should have all of his costs save only for those which are solely related to the extant family provision claim consistent with the principle set out by the House of Lords in Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88, as recently explained by Parker J in Mao v Bao (No 3) [2023] NSWSC 261 at [23]-[27].

Determination

1. [14]

   Costs are in the discretion of the Court: s 98 Civil Procedure Act 2005 (NSW). UCPR r 42.20 provides that unless the Court orders otherwise, the plaintiff should pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.

2. [15]

   There is no reason for the Court to otherwise order in the circumstances of the present case. Indeed, this was not really suggested. The debate was really about what form of order best gives effect to ordering Paola to pay Walter’s costs of the proceedings to the extent they have been dismissed.

3. [16]

   I am not persuaded that I should adopt the principal position advanced by Walter – namely requiring Paola to pay all of the costs of the proceedings up to and including 29 August 2024. I am in no position to determine on the material before me whether – as Walter contends – very little of the affidavit material served before 29 August 2024 has any direct relevance to the remaining family provision claim or whether the various directions hearings have all been wasted.

4. [17]

   For essentially the same reasons, I am not persuaded that the approach propounded by Paola is appropriate. It is far from clear to me that the affidavits referred to are only those that relate to the abandoned claims. The approach also ignores the fact that there is likely to have been not inconsiderable costs incurred in considering the abandoned claims which went beyond responding to evidence or preparing new evidence.

5. [18]

   The preferable approach, in my view, consistent with UCPR r 42.20 and the orders made on 21 August 2024, is to order Paola to pay Walter’s costs of the proceedings save for those costs that relate solely to a claim for a family provision order.

6. [19]

   In the exercise of my discretion in the circumstances of the present case it is appropriate to allocate any common costs to the abandoned claims: see Odelli v Gabrielle (No 2) [2024] NSWSC 768 at [10]-[14]. As set out in my Earlier Judgment, the focus of Paola, until recent times, has been on the probate claims and not the family provision claim. Insofar as there may have been evidence filed which is now said to also have relevance to the family provision claim, it is appropriate to nonetheless apportion those costs to the abandoned claims. For this reason, I have used the word “solely” in the order.

7. [20]

   I reserve to Walter the right to contend, after the conclusion of the proceedings, that the costs should be paid on the indemnity basis.

8. [21]

   The Court orders that:

   1. (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. (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.