Zepinic v Chateau Constructions (Aust) Ltd - [2014] NSWCA 27

Court of Appeal

New South Wales

Case Title: Zepinic v Chateau Constructions (Aust) Ltd

Medium Neutral Citation: [2014] NSWCA 27

Hearing Date(s): 18 February 2014

Decision Date: 18 February 2014

Before: Basten JA; Gleeson JA; Leeming JA

Decision:
1. Dismiss the applicant's application to vacate the hearing date.
2. Dismiss the amended notice of motion filed 6 August 2013, seeking to review the judgment of McColl JA of 1 July 2013.
3. Order the applicant to pay the respondent's costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - review of decision of single Judge of Appeal - Supreme Court Act 1970 (NSW) s 46 - whether there was "order" or "judgment" - where any order did not affect final result - review incompetent

APPEAL - purported appeal from judgments and orders by notice of motion instead of summons for leave to appeal - failure to identify orders or judgments - failure to identify grounds of appeal

PROCEDURE - application to vacate - application lacking in merit - no exceptional circumstances - application dismissed

Legislation Cited: Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rules 2005 (NSW), r 10.6(2)

Cases Cited: Commonwealth v Bank of New South Wales [1950] AC 235
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Howard v National Bank of New Zealand Ltd [2002] FCA 1257; 121 FCR 366
Lewis v Condon; Condon v Lewis [2013] NSWCA 204
Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278

Category: Principal judgment

Parties: Dr Vito Zepinic (Applicant)
Chateau Constructions (Aust) Ltd (Respondent)

Representation

- Counsel: Counsel:
No appearance for the applicant
B Ilkovski (Respondent)

- Solicitors: Solicitors:
Toomey Pegg Lawyers (Respondent)

File Number(s): 2010/45208

Decision Under Appeal

- Court / Tribunal: Court of Appeal

- Before: McColl JA

- Date of Decision: 01 July 2013

- Citation: [2013] NSWCA 214

- Court File Number(s): CA 2010/45208

JUDGMENT

JUDGMENT of the COURT delivered by LEEMING JA: The applicant calls himself "Dr Vito Zepinic", which is contentious (see Zepinic v Psychologists Registration Board of NSW [2010] NSWPST 6) but immaterial for present purposes. He is unrepresented.
The principal relief sought by the applicant's amended notice of motion filed 6 August 2013 is the setting aside of what is described as the "ex parte judgement by McColl JA" made on 1 July 2013. On that day, her Honour heard an application by the respondent (Chateau Constructions) pursuant to an amended notice of motion filed 17 June 2013. Her Honour gave reasons for concluding that personal service upon the applicant, which concededly had not been…

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.

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Details

Case: [2014] NSWCA 27
Decision Date: 18 February 2014

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Basten, Gleeson, and Leeming JJA considered an application by the unrepresented applicant, Dr Vito Zepinic, to vacate a hearing date and to set aside an order made by McColl JA on 1 July 2013. The dispute arose from an application by the respondent, Chateau Constructions (Aust) Ltd, seeking an order that personal service upon the applicant was not necessary for the respondent's amended notice of motion. McColl JA had concluded that forwarding documents to a specific address constituted sufficient service for the purposes of that motion. Separately, Chateau Constructions had also sought interest on a prior costs order, which McColl JA dismissed as incompetent on 18 July 2013.

The primary legal issues before the Court of Appeal were whether the applicant's amended notice of motion constituted a competent appeal or review of McColl JA's order of 1 July 2013, and whether the applicant had demonstrated exceptional circumstances to warrant vacating the hearing date. The applicant sought to set aside McColl JA's order regarding service and to dismiss the respondent's notices of motion, citing various rules of the Uniform Civil Procedure Rules 2005 (NSW) and international conventions concerning service abroad. The applicant also contended he had never been served with the respondent's motion that McColl JA dismissed on 18 July 2013.

The Court determined that the applicant's amended notice of motion was not a competent appeal or review. It noted that the order of 1 July 2013, which deemed certain forwarding of documents as sufficient service, did not affect the final result of the proceedings, rendering a review under s 46 of the Supreme Court Act 1970 (NSW) incompetent. Furthermore, the Court found that the applicant's application to vacate the hearing date lacked merit and did not present any exceptional circumstances. The Court also observed that the applicant's purported appeal was initiated by notice of motion rather than a summons for leave to appeal, and failed to clearly identify the specific orders or judgments being appealed and the grounds for appeal.

Consequently, the Court dismissed the applicant's application to vacate the hearing date and his amended notice of motion seeking to review McColl JA's order of 1 July 2013. The applicant was ordered to pay the respondent's costs of the motion.

Orders

Orders of the court

1. Dismiss the applicant's application to vacate the hearing date.

2. Dismiss the amended notice of motion filed 6 August 2013, seeking to review the judgment of McColl JA of 1 July 2013.

3. Order the applicant to pay the respondent's costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT of the COURT delivered by LEEMING JA: The applicant calls himself "Dr Vito Zepinic", which is contentious (see Zepinic v Psychologists Registration Board of NSW [2010] NSWPST 6) but immaterial for present purposes. He is unrepresented. The principal relief sought by the applicant's amended notice of motion filed 6 August 2013 is the setting aside of what is described as the "ex parte judgement by McColl JA" made on 1 July 2013. On that day, her Honour heard an application by the respondent (Chateau Constructions) pursuant to an amended notice of motion filed 17 June 2013. Her Honour gave reasons for concluding that personal service upon the applicant, which concededly had not been undertaken, was not necessary: Zepinic v Chateau Constructions (Australia) Ltd [2013] NSWCA 214. Those reasons record that her Honour was asked to make an order under r 10.6(2) of the Uniform Civil Procedure Rules 2005 (NSW), and on that day, her Honour's conclusion was formulated in an "order" in these terms:"Forwarding under cover of the letters referred to in Mr Loel's affidavit of the original notice of motion and the amended notice of motion to the Little Thames Walk address should be taken to constitute sufficient service for the purpose of the amended notice of motion." Otherwise, her Honour reserved her decision. Chateau Constructions' motion before McColl JA on 1 July 2013 sought an order that it be awarded interest on a costs order in its favour made in this Court on 10 May 2010, when a summons seeking leave to appeal from a decision of the District Court made on 20 November 2009 was dismissed. McColl JA dismissed Chateau Constructions' motion on 18 July 2013 as incompetent; the reasons for that conclusion are not presently relevant. Her Honour recorded that there was no appearance by the applicant, and for that reason made no order for costs: see at [89]. Paragraphs 1 and 3 of the applicant's notice of motion seek these orders:"Order to set aside ex parte judgement by McColl JA made on 1 July 2013 pursuant to the r11 & 11A, r35.9.100 and r10.2(1)(2) of UCPR 2005, the CL210.175 & CL210.180 of the NSW Supreme Court Practice and Procedure, and Articles 5 & 6 of 14. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded on 15 November 1965....Order to dismiss the "Notice of Motion" filed by the Respondent on 29 May 2013 and "Amended Notice of Motion" filed 17 June 2013 pursuant to the r11 & 11A, r35.9.100 and r10.2(1)(2) of UCPR 2005, the CL210.175 & CL210.180 of the NSW Supreme Court Practice and Procedure, and Articles 5 & 6 of 14. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded on 15 November 1965." Paragraphs 3 and 5 of the applicant's affidavit filed in support of his motion state that he left Australia on 10 March 2009, and has resided in the United Kingdom ever since, leaving behind no representative for service. Paragraphs 8 and 9 state that he had never been served with Chateau Constructions' notice of motion which McColl JA dismissed on 18 July 2013.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Zepinic v Chateau Constructions (Aust) Ltd
Medium Neutral Citation:	[2014] NSWCA 27
Hearing Date(s):	18 February 2014
Decision Date:	18 February 2014
Before:	Basten JA; Gleeson JA; Leeming JA
Decision:	1. Dismiss the applicant's application to vacate the hearing date. 2. Dismiss the amended notice of motion filed 6 August 2013, seeking to review the judgment of McColl JA of 1 July 2013. 3. Order the applicant to pay the respondent's costs of the motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - review of decision of single Judge of Appeal - Supreme Court Act 1970 (NSW) s 46 - whether there was "order" or "judgment" - where any order did not affect final result - review incompetent APPEAL - purported appeal from judgments and orders by notice of motion instead of summons for leave to appeal - failure to identify orders or judgments - failure to identify grounds of appeal PROCEDURE - application to vacate - application lacking in merit - no exceptional circumstances - application dismissed
Legislation Cited:	Supreme Court Act 1970 (NSW), s 46(4) Uniform Civil Procedure Rules 2005 (NSW), r 10.6(2)
Cases Cited:	Commonwealth v Bank of New South Wales [1950] AC 235 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 Howard v National Bank of New Zealand Ltd [2002] FCA 1257; 121 FCR 366 Lewis v Condon; Condon v Lewis [2013] NSWCA 204 Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278
Category:	Principal judgment
Parties:	Dr Vito Zepinic (Applicant) Chateau Constructions (Aust) Ltd (Respondent)
Representation
- Counsel:	Counsel: No appearance for the applicant B Ilkovski (Respondent)
- Solicitors:	Solicitors: Toomey Pegg Lawyers (Respondent)
File Number(s):	2010/45208
Decision Under Appeal
- Court / Tribunal:	Court of Appeal
- Before:	McColl JA
- Date of Decision:	01 July 2013
- Citation:	[2013] NSWCA 214
- Court File Number(s):	CA 2010/45208