Nina Zepinic v Chateau Constructions (Aust) Ltd

[2020] NSWSC 86

Supreme Court

New South Wales

Medium Neutral Citation:

Nina Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86

Hearing dates:

10 February 2020

Date of orders:

10 February 2020

Decision date:

10 February 2020

Jurisdiction:

Equity

Before:

Robb J

Decision:

1 Declaration that the proceedings commenced by the notice of motion filed by the applicant on 5 December 2019 and the amended notice of motion filed by the applicant on 5 February 2020 are proceedings to which section 13(2) and (3) of the Vexatious Proceedings Act 2008 (NSW) apply.

 

2 Declaration that the notice of motion filed on 5 December 2019 has been dismissed by force of section 13(3) of the Vexatious Proceedings Act 2008 (NSW).

 

3 Order that the amended notice of motion filed on 5 February 2020 be dismissed pursuant to section 13(4)(b) of the Vexatious Proceedings Act 2008 (NSW).

 4    Order the applicant to pay the respondent's costs of the notice of motion and the amended notice of motion.

Category:

Procedural and other rulings

Parties:

Vito Zepinic (applicant)
Chateau Constructions (Aust) Ltd (respondent)

Representation:

Counsel:

  Solicitors: Vito Zepinic (applicant in person)
Toomey Pegg Lawyers (respondent)

File Number(s):

2016/00097515

EX TEMPORE Judgment

1. Mr Vito Zepinic is the applicant on a notice of motion filed on 5 December 2019 in these proceedings 2016/97515. On 5 February 2020, Mr Zepinic filed an amended notice of motion. Both motions were made returnable today before the Registrar and have been referred to the Duty Judge. In short, the notice of motion claims by order 1 that a writ for levy of property issued by the respondent, Chateau Constructions (Aust) Limited, is a fraud. It also, by orders 2 and 3, seeks orders that judgments entered by Pembroke J on 25 May 2017 and by me on 4 June 2018 are invalid. Those judgments, as I understand it, were made in these proceedings and also proceedings 2009/290598.

2. By the orders made by Pembroke J on 25 May 2017, pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Mr Zepinic was:

Prohibited from instituting proceedings in New South Wales ... (c) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2009/290598; … (e) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2016/97515.

3. Section 5(2) of the Vexatious Proceedings Act has the effect that a reference to instituting proceedings includes a reference to instituting (a) proceedings generally and (b) proceedings in relation to a particular matter.

4. I take the view that the definition of "proceedings" has the effect that the vexatious proceedings orders that I have set out above mean that Mr Zepinic is prohibited by the Vexatious Proceedings Act from seeking any relief by notice of motion in either of the two proceedings of the type sought in the notice of motion or the amended notice of motion without the requirements under the Act for leave first having been complied with.

5. After some discussion it became apparent that Mr Zepinic has, in fact, sought leave under the Vexatious Proceedings Act in relation to another matter, not involving the present respondent, and that application has not yet finally been dealt with. Asked by the Court whether any application for leave under the Vexatious Proceedings Act had been made by Mr Zepinic in relation to the relief sought in the notice and amended notice of motion, Mr Zepinic stated that no such application for leave has been made.

6. As I understand it, Mr Zepinic's principal concern is that the writ for levy of property is for an amount in the order of $84,000 which Mr Zepinic regards as unjustifiable. As I have noted, Mr Zepinic also seeks orders to the effect that the two judgments that I have mentioned of this Court are voidable or invalid. I should mention for completeness that the amended notice of motion seeks to have set aside a further writ for levy of property claimed to have been issued on 28 January 2020, as well as an order that the two proceedings in this Court that I have mentioned proceed together.

7. I am satisfied that section 13 of the Vexatious Proceedings Act has been triggered. The consequence is that both notices of motion have been stayed by force of the Act, and the effect of section 13(3) of the Act was that the notice of motion has been dismissed by force of the Act 28 days after the notice of motion was filed, which has now elapsed. The amended notice of motion, if it is correct to treat it as a separate proceeding, is also stayed, and it will shortly be dismissed by force of the Act.

8. The Court has explained to Mr Zepinic that, if he wishes to seek relief of the sort contained in the motion or amended notice of motion, it is essential that he first seek leave in the specific manner required by section 13 of the Vexatious Proceedings Act. If he does not do that, the Act will have effect of its own force and it will be inevitable that any proceeding he commences will be dismissed. It has been explained that it is not a matter for the discretion of the Court.

9. I am satisfied that, on the respondent's application, it is entitled to orders that make clear the legal position in relation to the notice and amended notice of motion. Section 13(4) of the Vexatious Proceedings Act, among other things, permits the Court to make an order dismissing the proceedings before the expiration of the period of 28 days, and also authorises the Court to make any other order in relation to the proceedings that it considers appropriate, including an order for costs.

10. I make the following orders:

1. Declaration that the proceedings commenced by the notice of motion filed by the applicant on 5 December 2019 and the amended notice of motion filed by the applicant on 5 February 2020 are proceedings to which section 13(2) and (3) of the Vexatious Proceedings Act 2008 (NSW) apply.

2. Declaration that the notice of motion filed on 5 December 2019 has been dismissed by force of section 13(3) of the Vexatious Proceedings Act 2008 (NSW).

3. Order that the amended notice of motion filed on 5 February 2020 be dismissed pursuant to section 13(4)(b) of the Vexatious Proceedings Act 2008 (NSW).

4. Order the applicant to pay the respondent's costs of the notice of motion and the amended notice of motion.

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Decision last updated: 19 February 2020