Zepinic v Chateau Constructions (Aust) Limited - [2016] NSWSC 1254

Supreme Court

New South Wales

Medium Neutral Citation: Zepinic v Chateau Constructions (Aust) Limited [2016] NSWSC 1254
Hearing dates: 5 September 2016
Date of orders: 05 September 2016
Decision date: 05 September 2016
Jurisdiction: Equity
Before: Pembroke J
Decision:
Proceeding dismissed

Catchwords: PROCEDURE – summary dismissal – no reasonable cause of action
Legislation Cited: Real Property Act 1900 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Chateau Constructions (Aust) Limited v Zepinic and Anor [No 5] [2010] NSWSC 265
Donnelly v Australia and New Zealand Banking Group Limited [2016] NSWSC 263
The Ampthill Peerage [1977] AC 547
Zepinic v Chateau Constructions (Aust) Limited [2016] NSWCA 50
Category: Principal judgment
Parties: Nina Zepinic – first plaintiff
Vito Zepinic (also known as Vitomir Zepinic) – second plaintiff
Chateau Constructions (Aust) Limited – defendant
Representation:
Counsel:
N/A
Solicitors:
Vito Zepinic – second plaintiff in person
Andrew Loel, Toomey Pegg Lawyers – for the defendant

File Number(s): 2016/097515

Judgment

Introduction

This proceeding, which was commenced in March this year after nine years of litigation over the same subject matter, is a scandalous waste of public resources and private money. It is driven by the second plaintiff, Dr Zepinic, whose arguments and submissions, it must regrettably be said, are indulgent and irrational.
The comments that I made in Donnelly v Australia and New Zealand Banking Group Limited [2016] NSWSC 263 at [21] are just as appropriate here as they were in that case:

…The public resource of the courts is not available to indulge endlessly the misconceived whims of disappointed litigants. The public interest in the finality of litigation requires that an end be brought to hopeless causes. It is time to close the book. And it is appropriate to repeat the wisdom of Lord Wilberforce in The Ampthill Peerage [1977] AC 547 at 569:
… the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and there are cases where the law insists on finality.

There are two applications before me. On 3 June, the defendant (Chateau) filed a notice of motion seeking summary dismissal of the proceedings. On 8 June, Dr Zepinic responded with an absurd notice of motion of his own, seeking, among many other things, ‘default judgment’ constituted by an order to set aside the contract of the sale of land dated 15 November 2014 between Nicholas Craig Malanos, the court appointed trustee for sale, as…

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.

Keep reading for free

Create a free CaseChat account to read Zepinic v Chateau Constructions (Aust) Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1254
Decision Date: 05 September 2016

CaseChat Overview and Summary

In the matter of Zepinic v Chateau Constructions (Aust) Limited, the Federal Court was tasked with considering whether the plaintiff's claim had a reasonable cause of action, which was essential to avoid summary dismissal. The plaintiff, Zepinic, was a subcontractor who had entered into a contract with Chateau Constructions for works on a residential property. The dispute centred on the subcontractor's entitlement to payment for additional works performed and the main contractor's obligation to compensate the subcontractor for such work.

The primary legal issue before the court was whether the plaintiff's claim, as initially presented, had any reasonable prospects of success. Specifically, the court had to determine if the plaintiff had adequately pleaded a cause of action for the additional work carried out and whether there were any jurisdictional or procedural impediments that could result in the claim being dismissed summarily. The court's assessment involved scrutinising the particulars of the claim to ascertain if they disclosed a reasonable cause of action.

The court determined that the plaintiff's claim lacked a reasonable cause of action and was liable to be summarily dismissed. The primary reasons included deficiencies in the particulars of the claim, which failed to sufficiently outline the nature of the additional works performed or the basis for the entitlement to payment. The court noted that the particulars did not provide adequate details or evidence to support the plaintiff's assertions, leading to the conclusion that the claim was not made out on the face of the particulars. As a result, the court dismissed the plaintiff's claim summarily, finding that there was no reasonable cause of action presented.

Orders