Zepinic v Chateau Constructions (Aust) Ltd

[2020] NSWSC 408

Supreme Court

New South Wales

Medium Neutral Citation:

Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 408

Hearing dates:

15 and 16 April 2020

Date of orders:

16 April 2020

Decision date:

16 April 2020

Jurisdiction:

Equity - Duty List

Before:

Lindsay J

Decision:

(1) DECLARE that, pursuant to section 13(2) of the Vexatious Proceedings Act 2008 NSW, the Notice of Motion filed by Vitomir Zepinic (also known as Vito Zepinic) on 23 March 2020 has been stayed until it is dismissed (or taken to be dismissed) under section 13 of the Act.

 

(2) ORDER that the Notice of Motion filed on 23 March 2020 be dismissed pursuant to section 13(4)(b) of the Vexatious Proceedings Act 2008.

(3) ORDER that Vitomir Zepinic (also known as Vito Zepinic) pay Chateau Constructions (Aust) Ltd’s costs of and incidental to the Notice of Motion filed on 23 March 2020 on an indemnity basis, assessed in the gross sum of $5,000.00 (excluding GST), pursuant to section 98(4)(c) of the Civil Procedure Act 2005 NSW.

Catchwords:

VEXATIOUS proceedings – Dismissal of Notice of Motion filed without leave – Abuse of process.

Legislation Cited:

Civil Procedure Act 2005 NSW
Vexatious Proceedings Act 2008 NSW

Cases Cited:

Chateau Constructions (Aust) Ltd v Zepinic [2020] NSWSC 266.
Nina Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86)

Vito Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317)
Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582

Texts Cited:

-

Category:

Procedural and other rulings

Parties:

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

Representation:

Counsel:
-

  Solicitors:
Applicant: Vito Zepinic, in person
Respondent: Toomey Pegg Lawyers

File Number(s):

2009/00290598

Judgment

1. By virtue of orders made by Pembroke J on 25 May 2017 (Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582 at [49]-[50]), upheld by the Court of Appeal on 14 December 2018 (Vito Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317), Vitomir Zepinic (“Mr Zepinic”), also known as Vito Zepinic, is constrained in his conduct of proceedings by the Vexatious Proceedings Act 2008 NSW.

2. The orders made by Pembroke J include orders (set forth in paragraphs [49]-[50] of his reasons for judgment) to the effect that Mr Zepinic is prohibited from instituting proceedings in New South Wales relating to or arising out of the subject matter of various proceedings, including the present proceedings (numbered 2009/00290598) in which Mr Zepinic filed on 23 March 2020 a Notice of Motion presently before the Court for consideration.

3. In a nutshell, the background to that Notice of Motion is as follows:

1. By a Notice of Motion filed on 17 February 2020, Mr Zepinic sought leave under section 14(2) of the Vexatious Proceedings Act 2008 to commence proceedings to set aside Pembroke J’s order and to have set aside two writs of levy of property.

2. On 19 March 2020 Stevenson J dismissed that motion for reasons published on that date as Chateau Constructions (Aust) Ltd v Zepinic [2020] NSWSC 266.

3. On 24 March 2020 his Honour made a specified gross sum costs order against Mr Zepinic (in favour of the respondent to the motion, Chateau Constructions (Aust) Ltd) for reasons set forth in unpublished reasons for judgment styled “Chateau Constructions (Aust) Ltd v Zepinic (No. 2), not published on Caselaw.

4. Mr Zepinic did not wait for Stevenson J’s second judgment before seeking to have the first judgment set aside. On 23 March 2020 he filed the Notice of Motion presently before the Court.

5. The Notice of Motion filed on 23 March 2020 is primarily directed (against the respondent, Chateau Constructions (Aust) Ltd) to seeking an order that Stevenson J’s dismissal order of 19 March 2020 be set aside and, incidentally, to seeking to set aside Pembroke J’s order of 25 May 2017, as well as invoking or challenging other orders affecting him.

4. Mr Zepinic has not sought leave to file his Notice of Motion of 23 March 2020.

5. That Notice of Motion is, in form and substance, an attempt to re-litigate the subject matter of the Notice of Motion dismissed by Stevenson J on 19 March 2020 after a contested hearing. Absent any material change of circumstances, it is an abuse of the processes of the Court.

6. The Notice of Motion filed on 23 March 2020, as with the Notice of Motion filed on 17 February 2020, relates to and arises out of the subject matter of these, the proceedings in which it was filed, proceedings the subject of subsisting vexatious proceedings orders.

7. I am satisfied that the respondent to the Notice of Motion filed on 23 March 2020 is entitled to the protection afforded to it by those orders, made by Pembroke J on 25 May 2017 under section 8 of the Vexatious Proceedings Act.

8. On the respondent’s application, I make the following orders (following the language of section 13 of the Vexatious Proceedings Act and the form of orders made by Robb J in Nina Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86):

1. DECLARE that, pursuant to section 13(2) of the Vexatious Proceedings Act 2008 NSW, the Notice of Motion filed by Vitomir Zepinic (also known as Vito Zepinic) on 23 March 2020 has been stayed until it is dismissed (or taken to be dismissed) under section 13 of the Act.

2. ORDER that the Notice of Motion filed on 23 March 2020 be dismissed pursuant to section 13(4)(b) of the Vexatious Proceedings Act 2008.

3. ORDER that Vitomir Zepinic (also known as Vito Zepinic) pay Chateau Constructions (Aust) Ltd’s costs of and incidental to the Notice of Motion filed on 23 March 2020 on an indemnity basis, assessed in the gross sum of $5,000.00 (excluding GST), pursuant to section 98(4)(c) of the Civil Procedure Act 2005 NSW.

9. As an evidentiary foundation for making of a lump sum costs order, the solicitor for the respondent gave oral evidence as to the quantum of costs incurred by the respondent in response to the Notice of Motion filed 23 March 2020. That evidence was to the effect that: (a) the respondent’s solicitor-client costs, yet to be formally rendered in an account, total $5,500; and (b) based upon his personal experience of costs assessments (including assessments involving these parties), the party-party costs likely to be recoverable on the indemnity basis are $5,000.

10. The desirability of making a lump sum costs order, in the context of the Vexatious Proceedings Act, is reinforced by the case management principles set out in Part 6 Division 1 (sections 56-60) of the Civil Procedure Act 2005. To subject the parties to a necessity for costs assessment proceedings in relation to a relatively modest claim for costs would be to frustrate, if not defeat, the object of this legislation.

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Decision last updated: 16 April 2020