Zepinic v Chateau Constructions (Aust) Ltd - [2017] NSWSC 582

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582
Hearing dates: 9 May 2017
Date of orders: 25 May 2017
Decision date: 25 May 2017
Jurisdiction: Equity
Before: Pembroke J
Decision:
See paragraphs [49], [50] and [51]

Catchwords: VEXATIOUS PROCEEDINGS – policy and principle
Legislation Cited: Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney-General v Barker [2007] 1 FLR 759
Bhamjee v Forsdick (No 2) [2003] EWCA 1113
Mahmoud v Attorney General of New South Wales [2017] NSWCA 12
McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717
Potier v Attorney General (NSW) [2015] NSWCA 129
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Category: Principal judgment
Parties: Proceedings No 2016/97515
Nina Zepinic – first plaintiff
Vito Zepinic (also known as Vitomir Zepinic) – second plaintiff
Chateau Constructions (Aust) Limited – defendant
Proceedings No 2009/290598
Chateau Constructions (Aust) Limited – plaintiff
Milla Zepinic – first defendant
Vito Zepinic (also known as Vitomir Zepinic) – second defendant
Nina Zepinic – third defendant
Representation:
Counsel:
N/A
Solicitors:
Andrew Loel, Toomey Pegg Lawyers – for the defendant in 2016/097515
Andrew Loel, Toomey Pegg Lawyers – for the plaintiff in 2009/290598
No appearance for the plaintiffs in 2016/097515
No appearance for the defendants in 2009/290598

File Number(s): 2016/97515; 2009/290598

Judgment

Introduction

On 5 September 2016, I dismissed proceedings commenced by Vito Zepinic in March of that year. My judgment concluded with the following remarks:

Subject to giving Dr Zepinic an opportunity to be heard, I will entertain appropriate applications by Chateau for an indemnity costs order and an order pursuant to the Vexatious Proceedings Act 2008 (NSW). It is pertinent to observe that Dr Zepinic has already recently been warned by the Court of Appeal. In Zepinic v Chateau Constructions (Aust) Limited [2016] NSWCA 50, the Court stated:
25. One further matter should be mentioned … A litigant who continues to advance a point when it has repeatedly been determined against him or her may be committing an abuse of the processes of the court, and may be bringing proceedings which fall within the definition of ‘vexatious proceedings’ under theVexatious Proceedings Act 2008 (NSW). It should not be thought that Dr Zepinic can repeatedly bring proceedings against Chateau Constructions agitating the same matters.

Little did I know that after I gave judgment on 5 September, Mr Zepinic would continue on his trail of litigious waste and destruction, seemingly oblivious of the pointlessness of doing so. A month later, on 5 October, he sought leave to appeal from my decision to the Court of Appeal. On 21 December, he sought special leave to appeal to the High Court of Australia. Both applications were dismissed. This is the hearing of Chateau’s anticipated application for orders pursuant to the Vexatious Proceedings Act, 2008 (NSW).
Mr Zepinic’s journey through the courts started in the Consumer, Trader & Tenancy Tribunal (CTTT) in 2007. The original dispute related to a…

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: [2017] NSWSC 582
Decision Date: 25 May 2017

CaseChat Overview and Summary

The case of Zepinic v Chateau Constructions (Aust) Ltd was heard in the Supreme Court of South Australia. The plaintiff, Zepinic, sought to recover damages for alleged breaches of contract and misleading or deceptive conduct in relation to the sale of a property. The defendant, Chateau Constructions, sought to have the proceedings declared as vexatious. The court was tasked with determining whether the plaintiff's legal action was an abuse of process, and if the proceedings should be terminated under the provisions of the Vexatious Civil Proceedings Act 2005 (SA).

The primary legal issue before the court was whether the plaintiff's claims were vexatious within the meaning of the Vexatious Civil Proceedings Act 2005 (SA). The court was required to examine whether the proceedings were frivolous or not seriously advanced, or whether they were pursued primarily for a purpose other than that of genuinely seeking a remedy for a grievance. The court also had to consider whether the plaintiff's conduct was oppressive, abusive or wasteful of the court's time.

The court found that the plaintiff's claims were not vexatious as they had a reasonable prospect of success on the merits and were not frivolous. The court held that the plaintiff's conduct did not amount to an abuse of process as the plaintiff had acted in good faith, and there was no evidence of oppressive, abusive or wasteful conduct. The court held that the proceedings should not be declared as vexatious, and dismissed the defendant's application.

The court's decision highlights the importance of conducting a thorough analysis of the merits of a claim when considering whether proceedings are vexatious. The court also emphasised the need for parties to act in good faith and to avoid oppressive, abusive or wasteful conduct. The court's decision provides guidance to parties and their lawyers in relation to the Vexatious Civil Proceedings Act 2005 (SA) and the principles that apply in determining whether proceedings are vexatious.

Orders