Estate of Nitopi (No 2) [2021] NSWSC 748

Supreme Court New South Wales

Medium Neutral Citation: Estate of Nitopi (No 2) [2021] NSWSC 748 Hearing dates: 22, 23, 24, 25, 26 March 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Equity Before: Parker J Decision: See [286]-[290] Catchwords: EQUITY – unconscionable conduct – special disability or disadvantage – large payments by father in poor health to one of his daughters – notice of special disadvantage – presumption of unconscionability Legislation Cited: Evidence Act 1995 (NSW), s 91 Guardianship and Administration Act 2000 (Qld) Limitation Act 1969 (NSW) Cases Cited: Bridgewater v Leahy (1998) 194 CLR 457 Huguenin v Baseley (1807) 14 Ves Jun 273 Louth v Diprose (1992) 175 CLR 621 Turner v O'Bryan-Turner [2021] NSWSC 5 Turner v Windever [2003] NSWSC 1147 Texts Cited: Heydon, J D, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Principal judgment Parties: Giuseppe Nitopi (Plaintiff) Cristina Antonina Lucia Nitopi (Third Defendant) Representation: Counsel: LJ Ellison SC/D Liebhold (Plaintiff) L Finch (Third Defendant)

Solicitors: Hunter Lawyers (Plaintiff) File Number(s): 2014/327528 Publication restriction: Nil

Judgment 1. These proceedings arise out of a family dispute concerning the administration of the estate of the late Egidio ("Tony") Nitopi who died in May 2014 at the age of 73. The plaintiff in the proceedings is Giuseppe (also known as "Pepe") Nitopi, the deceased's only son. The remaining active defendant is Cristina Antonina Lucia Nitopi, the deceased's younger daughter. For convenience and without disrespect, I will refer to the members of the deceased's family by their given names. 2. The deceased's estate was worth more than $21 million. Giuseppe, who is one of the beneficiaries, seeks on behalf of the estate to recover a series of payments which were made by, or on behalf of, the deceased in favour of Cristina prior to his death. 3. The deceased was born in Sicily in September 1940. He came to Australia in the 1960s. He later became a successful businessman whose businesses included hardware wholesaling and property development. 4. The deceased's wife was Cristina Francesca Nitopi (nee Pirello) ("Tina"). She was also born in Sicily and migrated to Australia in her twenties. She and the deceased married in 1968. 5. Together the deceased and Tina had three children: 1. Giuseppe, born in October 1969; 2. Rosaria (also known as "Rose") Theoharopoulos (nee Nitopi), born in September 1971; 3. Cristina, born in March 1982. 1. The deceased and Tina separated in the 1990s. There were family law proceedings between them which resulted in the deceased making a property settlement in her favour, but they never divorced.