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

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

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.

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.

On 24 March 2020…

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: [2020] NSWSC 408
Decision Date: 16 April 2020

CaseChat Overview and Summary

In the case of Zepinic v Chateau Constructions (Aust) Ltd, the dispute involved allegations of vexatious proceedings against the respondent. The applicant sought to enforce a settlement agreement, which the respondent claimed was not binding. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the applicant's Notice of Motion, filed without leave, constituted an abuse of the court's process. The court had to determine if the applicant's actions were vexatious and whether they warranted the dismissal of the Notice of Motion.

The court considered the nature of the proceedings and the applicant's conduct in initiating the motion without leave. It was noted that the applicant had previously brought multiple proceedings against the respondent, many of which were dismissed for lack of merit or as vexatious. The court assessed whether the current Notice of Motion was an extension of the applicant's previous vexatious conduct. It was held that the applicant's failure to seek leave before filing the Notice of Motion, coupled with the history of vexatious litigation, justified the conclusion that the motion was an abuse of process.

Based on the findings, the court dismissed the Notice of Motion as an abuse of process. It found that the applicant's conduct demonstrated a pattern of vexatious litigation, which warranted the protection of the respondent from further unnecessary proceedings. The court emphasised the importance of adhering to procedural requirements and the need to prevent the misuse of the court's process. The final orders included the dismissal of the Notice of Motion and a direction for the applicant to pay the respondent's costs associated with the motion.

Orders