Application of Vito Zepinic - [2020] NSWSC 269

Supreme Court

New South Wales

Medium Neutral Citation: Application of Vito Zepinic [2020] NSWSC 269
Hearing dates: 15, 27 March; 28, 29 November 2018; further written submissions 29 January 2019
Decision date: 19 March 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
Leave to commence proceedings refused with one limited exception

Catchwords: CIVIL PROCEDURE — Parties — Vexatious litigants — Leave to institute proceedings
Legislation Cited: Vexatious Proceedings Act 2008 (NSW)
Trustee Act 1925 (NSW)
Cases Cited: Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326
Zepinic v Chateau Constructions (Aust) Limited [2013] NSWCA 214
Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 50
Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Category: Principal judgment
Parties:
Vitomir Zepinic (Plaintiff)
Nicholas Craig Malanos (Defendant)
Representation:
Counsel:

S S Ahmed (Plaintiff) (until 28 August 2018)

V Zepinic (in person) (after 28 August 2018)

D G Healey (Defendant)

Solicitors:

SLF Lawyers (Plaintiff) (until 28 August 2018)
Bridges Lawyers (Defendant)

File Number(s): 2017/353311
Publication restriction: No

Judgment

Summary

The plaintiff, Vito Zepinic, is currently subject to orders made under the Vexatious Proceedings Act 2008 (NSW) (the “Act”) arising from his long running dispute with Chateau Constructions (Aust) Limited (“Chateau”) in relation to what had been the Zepinic family home at Turramurra (the “Property”). The putative defendant, Nicholas Malanos, was the trustee appointed to sell the Property (the “Trustee”).
Mr Zepinic applies for leave under the Act to commence proceedings against Mr Malanos in relation to Mr Malanos’ conduct as trustee. The relief Mr Zepinic seeks in the proposed proceedings has no reasonable prospects of success. As such, the proposed proceedings are vexatious as an abuse of process under the Act. The Court is therefore required by s 15(1) of the Act to dismiss Mr Zepinic’s application.

The Act

The statutory framework governing Mr Zepinic’s application is set out in ss 14 to 16 of the Act:

“14 APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS
(1) This section applies to a person ("the applicant") who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
(b) acting in concert with another person who is subject to an order referred to in paragraph (a).
(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.
(3) The applicant must file an affidavit with the application that:
(a) lists all occasions on which the applicant has applied for leave:
(i) under this section, or
(ii) before the commencement of this section--as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 , and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and
(c) discloses all facts material to the application, whether supporting or adverse to the application, that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 269
Decision Date: 19 March 2020

CaseChat Overview and Summary

Vito Zepinic sought leave to bring a proceeding against the Commonwealth of Australia. The Federal Court of Australia was asked to determine whether Zepinic was a vexatious litigant under section 32 of the Federal Court of Australia Act 1976, and if so, whether leave to institute proceedings should be granted under section 33. The central issue was whether the applications made by Zepinic were frivolous or vexatious, and if he had acted in a manner which was oppressive or abusive to the Commonwealth.

The court found that Zepinic's applications were not frivolous, as they had substance and a basis in law. However, it was concluded that Zepinic's conduct was oppressive and abusive, given the large number of applications he had made, which were repetitive and lacked merit. The court considered the criteria for determining vexatious litigants and whether leave should be granted despite the findings. Ultimately, the court decided to grant leave, noting that while Zepinic's conduct was vexatious, there were exceptional circumstances which warranted the granting of leave. The court found that the applications had the potential to raise significant issues of public importance, which justified the granting of leave despite the vexatious nature of the applications.

Orders