Nitopi v Nitopi [2019] NSWCA 81

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nitopi v Nitopi [2019] NSWCA 81 Hearing dates: 28 March 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Before: Macfarlan JA at [1]; Meagher JA at [35]; McCallum JA at [36] Decision: (1) Allow the appeal. (2) Dismiss the appellant's motion for leave to adduce fresh evidence. (3) Set aside the orders made at first instance on 5 April 2018 ordering the dismissal of the statement of claim and ordering the appellant to pay the respondent's costs of the proceedings. (4) Dismiss the respondent's motion filed in the Common Law Division on 27 March 2018. (5) Order the respondent to pay the appellant's costs of that motion and of the appeal, including the application for leave to appeal. Catchwords: APPEAL – dismissal of proceedings for want of prosecution – appeal by leave – whether exercise of discretion miscarried Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Limitation Act 1969 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 12.10, 14.23 Cases Cited: Birkett v James [1978] AC 297 Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 State of New South Wales v Plaintiff A [2012] NSWCA 248 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 Category: Principal judgment Parties: Cristina Pirrello Nitopi (Appellant) Giuseppe Nitopi (Respondent) Representation: Counsel: D Cook SC (Appellant) H W M Stitt / J Tsang (Respondent)