1. Application to set aside the Vexatious Proceedings Order issued on 8 March 2024 dismissed with costs.
2. Costs to be paid from the Applicant’s share of the net proceeds of sale of the property at 36 Mawarra Crescent, Marsfield NSW, on an indemnity basis.
3. The Trustees are excused from filing and serving any written submissions or appearing at Court hearings should the Applicant file similar applications seeking to set aside the orders made by the Court on 8 March 2024 in the future, unless the Court directs otherwise.
Catchwords:
PRACTICE AND PROCEDURE – Vexatious proceedings order – Whether vexatious proceedings order should be set aside – Whether leave required under ss 9(3) or 14 of the Vexatious Proceedings Act 2008 (NSW) – Basis for exercising jurisdiction to set aside vexatious proceedings order – Where application substantially repeated previously rejected submissions
Philip Proietti (Applicant) Peter Proietti (First Respondent) Ian Colwell Miller and Peter Joseph Dominello as court appointed trustees (Second Respondent)
Representation:
Counsel:
P Proietti (Applicant in person) J Eun (Second Respondent)
[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
AGLC
Proietti v Proietti [2025] NSWCA 11
Case
[2025] NSWCA 11
Decision Date
CaseChat Overview and Summary
The applicant, Mr. Proietti, sought to set aside a vexatious proceedings order made against him on 8 March 2024 by the Court of Appeal of New South Wales. The respondents were the Trustees. The application to set aside the order was based on grounds that substantially repeated submissions previously rejected by the Court.
The central legal issues before the Court were whether leave was required under sections 9(3) or 14 of the *Vexatious Proceedings Act 2008* (NSW) to bring the application to set aside the vexatious proceedings order, and the basis upon which the Court could exercise its jurisdiction to set aside such an order.
The Court held that the application to set aside the vexatious proceedings order required leave under section 9(3) of the *Vexatious Proceedings Act 2008* (NSW), as it was an application to vary or set aside an order made under the Act. The Court found that the applicant had not demonstrated any grounds for granting leave, noting that the application was a substantial repetition of previously rejected arguments. The Court reiterated that the jurisdiction to set aside a vexatious proceedings order is exercised sparingly and only in exceptional circumstances, which were not present in this case.
Consequently, the Court dismissed the application to set aside the vexatious proceedings order. The applicant was ordered to pay the Trustees' costs on an indemnity basis from his share of the net proceeds of sale of a specified property. Furthermore, the Trustees were excused from filing submissions or appearing at future hearings should the applicant file similar applications to set aside the 8 March 2024 orders, unless the Court otherwise directed.
Orders
Orders of the court
1. Application to set aside the Vexatious Proceedings Order issued on 8 March 2024 dismissed with costs.
2. Costs to be paid from the Applicant’s share of the net proceeds of sale of the property at 36 Mawarra Crescent, Marsfield NSW, on an indemnity basis.
3. The Trustees are excused from filing and serving any written submissions or appearing at Court hearings should the Applicant file similar applications seeking to set aside the orders made by the Court on 8 March 2024 in the future, unless the Court directs otherwise.