Chateau Constructions (Aust) Ltd v Zepinic

[2020] NSWSC 266

Supreme Court

New South Wales

Medium Neutral Citation:	Chateau Constructions (Aust) Ltd v Zepinic [2020] NSWSC 266
Hearing dates:	19 March 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Equity - Duty List
Before:	Stevenson J
Decision:	Application for leave under s 14(2) of the Vexatious Proceedings Act 2008 (NSW) refused
Catchwords:	PRACTICE AND PROCEDURE – vexatious proceedings orders – whether procedures required by the Vexatious Proceedings Act 2008 (NSW) followed
Legislation Cited:	Civil Procedure Act 2005 (NSW) Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582 Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86
Category:	Procedural and other rulings
Parties:	Chateau Constructions (Aust) Ltd (Plaintiff/Respondent) Vito Zepinic (Third Defendant/Applicant)
Representation:	Solicitors: Toomey Pegg Lawyers (Plaintiff/Respondent)
File Number(s):	2009/290598
Publication restriction:	Nil

Judgment

1. Earlier today, sitting as Equity Duty Judge, I dismissed with costs an application made by Mr Zepinic for leave pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW) (“the Act”) to file a summons seeking orders to which I will return.

2. I was not able to deliver judgment in Court as Mr Zepinic refused to cease his submissions or remain quiet during delivery of my reasons.

3. Accordingly, I adjourned after making the orders and stating I would give my reasons in writing during the day.

4. This is yet another application by Mr Zepinic concerning his long-running dispute with Chateau Constructions (Aust) Ltd.

5. It is made following the making by Pembroke J on 25 May 2017 of orders under s 8(7) of the Act prohibiting Mr Zepinic from commencing the wide-ranging proceedings referred to in that judgment: Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582, especially at [49]. Those orders were upheld by the Court of Appeal: Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317.

6. The history of those applications has been set out in many judgments of this Court, including that of the Court of Appeal to which I have referred at [5] and most recently in that of Robb J in Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86.

7. By Notice of Motion filed on 17 February 2020, Mr Zepinic sought leave under s 14(2) of the Act (the Notice of Motion wrongly identifies s 16(3)) to commence proceedings to set aside Pembroke J’s order of 25 May 2017 and to have set aside two writs of levy of property.

8. In support of that application, Mr Zepinic read an affidavit by him of 13 February 2020.

9. There are a number of reasons why leave should not be granted.

10. Section 15(1)(a) of the Act obliges me to dismiss the application if the affidavit in support, required by s 14(3) of the Act, does not substantially comply with the requirements of s 14(3).

11. Section 14(3) places a very heavy burden on an applicant for leave requiring that person to:

1. list all occasions on which the applicant has hitherto applied for leave;

2. list all other proceedings the applicant has instituted in Australia; and

3. disclose all facts material to the application, whether supporting or adverse to the application, that are known to him.

12. As Mr Loel, who appeared for Chateau Constructions (Aust) Ltd, submitted, the affidavit required by s 14(3) of the Act is critical to the application. It must, in effect, set out all material facts relevant to the Court’s discretion to grant leave to commence the proposed proceedings.

13. Mr Zepinic’s affidavit does not comply with s 14(3).

14. Indeed, as I understood him, Mr Zepinic accepted that he had not in the affidavit listed all occasions on which he has hitherto sought leave under s 14, nor listed all other proceedings he has instituted in Australia.

15. Mr Zepinic certainly has not set out “all occasions” on which he has hitherto applied for leave. Indeed, his affidavit does not refer to any such occasions. There has been a least one such occasion that Mr Zepenic himself referred to in an affidavit he swore on 21 November 2017 in proceedings 2017/353311.

16. Further, Mr Zepinic’s affidavit does not list all other proceedings instituted in Australia. His affidavit only refers to two of the proceedings instituted by him in Australia. But he does not refer to any of the proceedings he has instituted within these proceedings.

17. Further, Mr Zepinic’s affidavit does not disclose the facts relevant to the orders he seeks to set aside the writs for the levy of property.

18. For those reasons, I dismissed Mr Zepinic’s motion.

19. I ordered that he pay Chateau Constructions (Aust) Ltd’s costs on an indemnity basis and indicated that I proposed to make a gross sum costs order in favour of Chateau Constructions (Aust) Ltd under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

20. I made those orders because I concluded that Mr Zepinic’s application was without merit, was made unreasonably and made without any regard to the requirements of the Act; the requirements of which Mr Zepinic should by now be intimately familiar.

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