Zepinic v Chateau Constructions (Aust) Ltd - [2016] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 50
Hearing dates: 16 March 2016
Decision date: 22 March 2016
Before: McColl JA; Leeming JA
Decision:
Summons seeking leave to appeal filed on 6 November 2015 dismissed as incompetent.

Catchwords: APPEALS – competency – application for leave to appeal – obligation to provide local address for service – where applicant maintained entitlement to provide United Kingdom address and asserted that personal service of him in the United Kingdom was required – where Court had earlier advised that originating process without a local address for service was apt to be regarded as incompetent – application dismissed as incompetent
Legislation Cited: Civil Procedure Act 2005 (NSW), s 126
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, art 10
Supreme Court Act 1970 (NSW), s 46
Uniform Civil Procedure Rules 2005 (NSW), Pt 11A, rr 4.2, 4.5, 10.20, 11A.12, 51.41
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Chateau Constructions (Aust) Ltd v Zepinic (Supreme Court (NSW), Rein J, 12 December 2014, unrep)
Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27; 85 NSWLR 289
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Texts Cited: A Briggs, Private International Law in English Courts (2014, Oxford University Press)
Category: Principal judgment
Parties: Vito Zepinic (Applicant)
Chateau Constructions (Aust) Ltd (Respondent)
Representation:
Counsel:
Applicant in person
B Ilkovski (Respondent)
Solicitors:
Toomey Pegg Lawyers (Respondent)

File Number(s): 2015/326487
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Date of Decision:

12 December 2014

Before:

Rein J

File Number(s):

2009/290598

Judgment

THE COURT: The applicant, Dr Vito Zepinic, filed a summons seeking leave to appeal on 6 November 2015. The respondent, Chateau Constructions (Aust) Ltd, filed a notice of motion on 5 February 2016 seeking, variously, that the summons be dismissed or struck out or that security for costs be provided. Both were listed for hearing on 16 March 2016.
The summons appears to have been prepared by Dr Zepinic without the assistance of lawyers. In relation to the decision from which leave to appeal is sought, it identifies the date of hearing as 18 December 2014 and the material date as 22 December 2014. It is true that some orders were made on 18 December 2014, and those orders were included in the white folder prepared by Dr Zepinic. However, the white folder includes an ex tempore judgment by Rein J on 12 December 2014 (Chateau Constructions (Aust) Ltd v Zepinic (Supreme Court (NSW), Rein J, 12 December 2014, unrep)) and the draft notice of appeal identifies that judgment as the judgment sought to be challenged. Dr Zepinic confirmed in his oral submissions that his challenge was to that judgment.
On 12 December 2014, Rein J made orders permitting the money judgments obtained by Chateau Constructions since 11 August 2014 to be included in…

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.

Continue reading Zepinic v Chateau Constructions (Aust) Ltd

Details

AGLC: Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 50
Case: [2016] NSWCA 50
Decision Date: 22 March 2016

CaseChat Overview and Summary

The New South Wales Court of Appeal, constituted by McColl and Leeming JJA, considered an application for leave to appeal brought by Dr Zepinic. The dispute concerned the competency of Dr Zepinic's application, which he sought to have set aside orders made against him on 12 December 2014. A key issue was Dr Zepinic's assertion that he was entitled to provide a United Kingdom address for service and that personal service upon him in the United Kingdom was required, despite the Court having previously advised that originating process lacking a local address for service was likely to be considered incompetent.

The Court was required to determine whether Dr Zepinic's application for leave to appeal was competent, given his failure to provide a local address for service in New South Wales. This involved considering the rules and principles governing service of process and the requirements for initiating an appeal in the Court of Appeal.

The Court dismissed Dr Zepinic's application as incompetent. The reasoning applied was that the failure to provide a local address for service rendered the originating process defective, and therefore the application could not proceed. The Court's earlier advice regarding the necessity of a local address for service was reiterated and applied to the present circumstances.

Orders

Orders of the court

adverse to the appellant, and dismissed Dr Zepinic’s challenge. Those principles do not apply to Dr Zepinic’s latest application in this Court, because on 12 December 2014 orders were made adverse to him which he seeks to have set aside.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 50
Hearing dates:	16 March 2016
Decision date:	22 March 2016
Before:	McColl JA; Leeming JA
Decision:	Summons seeking leave to appeal filed on 6 November 2015 dismissed as incompetent.
Catchwords:	APPEALS – competency – application for leave to appeal – obligation to provide local address for service – where applicant maintained entitlement to provide United Kingdom address and asserted that personal service of him in the United Kingdom was required – where Court had earlier advised that originating process without a local address for service was apt to be regarded as incompetent – application dismissed as incompetent
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 126 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, art 10 Supreme Court Act 1970 (NSW), s 46 Uniform Civil Procedure Rules 2005 (NSW), Pt 11A, rr 4.2, 4.5, 10.20, 11A.12, 51.41 Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Chateau Constructions (Aust) Ltd v Zepinic (Supreme Court (NSW), Rein J, 12 December 2014, unrep) Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27; 85 NSWLR 289 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Texts Cited:	A Briggs, Private International Law in English Courts (2014, Oxford University Press)
Category:	Principal judgment
Parties:	Vito Zepinic (Applicant) Chateau Constructions (Aust) Ltd (Respondent)
Representation:	Counsel: Applicant in person B Ilkovski (Respondent) Solicitors: Toomey Pegg Lawyers (Respondent)
File Number(s):	2015/326487
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Date of Decision: 12 December 2014 Before: Rein J File Number(s): 2009/290598