Zepinic v Chateau Constructions (Aust) Ltd

Case [2020] NSWCA 291


Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291
Hearing dates: On the papers
Date of orders: 17 November 2020
Decision date: 17 November 2020
Before: Bell P at [1]; White JA at [42]
Decision:

1.       Application for leave to appeal dismissed.

2.       Mr Zepinic to pay Chateau Constructions (Aust) Ltd’s costs in the sum of $14,292.34.

3.       Order 2 to be stayed for 14 days.

4.      In the event that Mr Zepinic seeks to vary order 2, he is to do so by letter addressed to the Registrar of the Court of Appeal within 7 days of these orders.

5.        If Mr Zepinic applies within 7 days to vary order 2 as provided for by order 4, order 2 be stayed until further order.

Catchwords:

APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act 2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW) ss 4, 8, 13, 14, 16

Cases Cited:

Chateau Constructions (Aust) Ltd v Zepinic [2020] NSWSC 266

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202

Horseshoe Pastoral Co Pty Ltd v Murray Smith t/as South Coast Tile and Slate Co [1995] NSWCA 200

Vito Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Zepinic v Chateau Constructions (Aust) Limited (No 2) [2019] NSWCA 187

Zepinic v Chateau Constructions (Aust) Ltd [2019] HCASL 326

Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582

Category:Principal judgment
Parties: Vito Zepinic (Applicant)
Chateau Constructions (Aust) Ltd (Respondent)
Representation:

Solicitors:

Vito Zepinic (Applicant in person)
Toomey Pegg Lawyers (Respondent)
File Number(s): 2020/139831
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity – Duty List
Citation:

[2020] NSWSC 408

Date of Decision:
16 April 2020
Before:
Lindsay J
File Number(s):
2009/290598

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 May 2017, in Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582, Pembroke J made orders under the Vexatious Proceedings Act 2008 (NSW) (the Act) to the effect that the applicant, Mr Vito Zepinic (Mr Zepinic), was prohibited from instituting proceedings in New South Wales relating to or arising out of the subject matters of various proceedings concerning the construction of a residential property in Turramurra.

By a Notice of Motion filed on 17 February 2020, Mr Zepinic sought leave under s 14(2) of the Act to commence proceedings to set aside Pembroke J’s order and to set aside two writs of levy of property.…

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AGLC
Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291
Case
[2020] NSWCA 291
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales, comprising Bell P and White JA, considered an application for leave to appeal by Mr Zepinic against Chateau Constructions (Aust) Ltd. The core of the dispute concerned whether Mr Zepinic, who was subject to a vexatious proceedings order, could validly institute an application for leave to appeal without first obtaining specific leave under the *Vexatious Proceedings Act 2008* (NSW).

The primary legal issue before the Court was whether Mr Zepinic's application for leave to appeal fell within the scope of the existing vexatious proceedings order. Consequently, the Court had to determine whether the application was a nullity or otherwise invalid due to the absence of prior leave granted under the *Vexatious Proceedings Act 2008* (NSW) to institute such proceedings.

The Court reasoned that the application for leave to appeal was indeed an application that fell within the ambit of the vexatious proceedings order. As Mr Zepinic had not sought, nor been granted, the necessary leave under the *Vexatious Proceedings Act 2008* (NSW) to institute this application, it was to be dismissed on that ground alone. Furthermore, the Court indicated that even if the procedural defect had not been fatal, the application would have been refused on its merits.

Accordingly, the Court dismissed Mr Zepinic's application for leave to appeal and ordered him to pay Chateau Constructions (Aust) Ltd’s costs in the sum of $14,292.34. This costs order was stayed for 14 days, with provisions for Mr Zepinic to seek a variation of the order within 7 days by letter to the Registrar, and for the stay to continue until further order if such an application was made.

Orders

Orders of the court

1. Application for leave to appeal dismissed.

2. Mr Zepinic to pay Chateau Constructions (Aust) Ltd’s costs in the sum of $14,292.34.

3. Order 2 to be stayed for 14 days.

4. In the event that Mr Zepinic seeks to vary order 2, he is to do so by letter addressed to the Registrar of the Court of Appeal within 7 days of these orders.

5. If Mr Zepinic applies within 7 days to vary order 2 as provided for by order 4, order 2 be stayed until further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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