Zepinic v Chateau Constructions (Aust) Ltd

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.