Zepinic v Chateau Constructions (Aust) Ltd (No 2)

[2019] NSWCA 187

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Zepinic, Vito v Chateau Constructions (Aust) Limited; Zepinic, Nina v Chateau Constructions (Aust) Limited (No 2) [2019] NSWCA 187
Hearing dates:	On the papers
Decision date:	30 July 2019
Before:	Bell P at [1]; Macfarlan JA at [2]; Simpson AJA at [3]
Decision:	In proceedings 2017/180325: The notice of motion filed on 17 December 2018 be dismissed with costs.  In proceedings 2017/180327: The notice of motion filed on 17 December 2018 be dismissed with costs.
Catchwords:	CIVIL PROCEDURE – Uniform Civil Procedure Rules r 36.16 – where orders dispositive of appeal have been made – where applicants seek orders setting aside judgment and allowing the appeals – whether asserted error in judgment readily identifiable, readily rectifiable or inadvertent
Legislation Cited:	Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16 Vexatious Proceedings Act 2008 (NSW), ss 4, 8
Cases Cited:	Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Chateau Constructions (Aust) Ltd v Zepinic; Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWSC 963 Collins (alias Hass) v The Queen (1975) 133 CLR 120; [1975] HCA 60 Majak v Rose (No 5) [2017] NSWCA 238 Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582
Texts Cited:	Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
Category:	Procedural and other rulings
Parties:	In proceedings 2017/180325: Vitomir Zepinic (Appellant) Chateau Constructions (Aust) Ltd (Respondent)   In proceedings 2017/180327: Nina Zepinic (Appellant) Chateau Constructions (Aust) Ltd (Respondent)
Representation:	Counsel: Not applicable (Appellants) Not applicable (Respondent)   Solicitors: Not applicable (Appellants) Toomey Pegg Lawyers (Respondent)
File Number(s):	2017/180325; 2017/180327

Judgment

1. BELL P: I agree with the reasons of Simpson AJA and the orders her Honour proposes.

2. MACFARLAN JA: I agree with Simpson AJA.

3. SIMPSON AJA: On 25 May 2017 a judge of the Equity Division of the Supreme Court (Pembroke J) made orders under the Vexatious Proceedings Act 2008 (NSW) with respect to Vito (also known as Vitomir) Zepinic, Nina Zepinic, and Milla Zepinic: Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582. The effect of the orders was to stay certain then extant proceedings instituted by one or more of them, and to prohibit them from instituting proceedings in NSW with respect to certain identifiable subject matters.

4. On 18 May 2018 another judge of the Equity Division (Robb J) made orders that the costs of the proceedings before Pembroke J be paid by Vito, Milla and Nina Zepinic as an assessed lump sum: Chateau Constructions (Aust) Ltd v Zepinic; Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWSC 963.

5. Vito Zepinic and Nina Zepinic appealed to this Court against the orders made in each proceeding. On 14 December 2018 this Court dismissed each appeal: Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 (“the December judgment”) and ordered the applicants to pay the respondent’s costs. As it was held that error had been established in the judgment of Pembroke J, this Court proceeded to exercise the jurisdiction conferred by s 75A of the Supreme Court Act 1970 (NSW) to make the necessary findings and reach the necessary conclusions.

6. The orders made by Pembroke J and upheld by this Court arose out of a protracted history of litigation between the parties which originated with a building contract entered into in 2006. Mr Zepinic was dissatisfied with the quality of the work performed. Thereafter, numerous proceedings were commenced by Vito, Milla and/or Nina Zepinic. It was those proceedings that prompted the respondent to apply for orders under the Vexatious Proceedings Act. The judgment of this Court involved scrutiny of the numerous proceedings commenced by one or other of the applicants, many (but not all) of which were found to have been vexatious for the purposes of s 8 of the Vexatious Proceedings Act.

7. In support of their appeal the applicants provided detailed written submissions. Those submissions were, for the most part, rejected.

8. By notices of motion filed on 17 December 2018 each applicant now applies for orders setting aside the December judgment and allowing the appeals. It will be convenient to refer to Vito and Nina Zepinic collectively as “the applicants”.

9. The applicants have not identified any source of power they invoke for the making of the orders. Two such sources suggest themselves. They are Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), rr 36.15 and UCPR 36.16. Those rules relevantly provide as follows:

“36.15 General power to set aside judgment or order

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order

(1)   The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2)   The court may set aside or vary a judgment or order after it has been entered if:

(a)   it is a default judgment (other than a default judgment given in open court), or

(b)   it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c)   in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

…

(3A)   If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

…”

10. As will be seen, an order under UCPR 36.15 depends on either the consent of the parties (sub-r (2)) or “sufficient cause being shown”. “Sufficient cause” may be shown by establishing that the judgment was given or entered or the order made “irregularly, illegally or against good faith”.

11. Plainly, the respondent has not consented, for the purposes of sub-r (2). The applicants have not produced any evidence to establish any of the bases for the application of sub-r (1) – that is, that the order was made irregularly, illegally or against good faith. UCPR 36.15 may be put to one side.

12. For the purposes of r 36.16, it is not in dispute that each notice of motion was filed within 14 days of the orders sought to be set aside and is therefore within time.

13. The scope of the jurisdiction conferred by r 36.16 was considered at some length in Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[18]. It is unnecessary to repeat all that was there said. In short, it is necessary that an applicant for orders under r 36.16(3A) establish that the court making the orders sought to be set aside has proceeded under some “misapprehension”. The rule is not designed to permit re-litigation of issues decided by the court: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6. Nor is the rule designed to permit disappointed litigants to present evidence or argument that was not presented at the hearing. The purpose of the rule was stated in Majak to be:

“12   … to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to appeal to the High Court).”

14. Vito Zepinic has filed a lengthy (82 pages) written submission, purportedly in support of the application. It may be taken that Nina Zepinic also relies on that submission. She has not filed any alternative or additional material or submissions.

15. The first 71 pages of Mr Zepinic’s document canvass, in great detail, the building contract, Mr Zepinic’s contentions concerning the asserted inadequacies of the building work undertaken thereunder, and much of the litigation that followed. Some of this re-stated arguments that had been put to the courts in which the litigation proceeded (some repeatedly), some of which had also been put to this Court (and which have been rejected). Some of what was contained in those pages raised entirely new material. None of it goes any way to establishing that the orders of 14 December 2018 dismissing the appeals ought to be set aside, or that, in dismissing the appeals, this Court was under any “misapprehension”.

16. One issue to which Mr Zepinic devoted a good deal of attention during the course of the appeal, and to which he devotes 15 pages of his written submission (pars 137-194), concerned his claim that various processes had not been served in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. This was necessary, he contended, because he and members of his family were resident in jurisdictions other than Australia. This was an issue that had been dealt with from time to time during the course of the various proceedings that gave rise to the claim under the Vexatious Proceedings Act.

17. From p 72 of the written submissions, Mr Zepinic appears to seek, in various ways, to identify error in the December judgment. By way of example, he refers to two paragraphs ([25]-[26]) of the December judgment in which it was said that the proceeding before Pembroke J was initially fixed for 9 May 2017, but delayed to 10 May, on which date neither of the applicants appeared (despite having been given notice). The assertion is made that “according to the Court” there was no hearing on 10 May. It is not clear whether this is intended to assert error, or “misapprehension” on the part of this Court. It is not contested that the applicants did not appear on 10 May, and that being so, it may well follow that no hearing took place. In any event, there is no basis identified in the written submissions for concluding that what was said evidences a “misapprehension” affecting the outcome of the appeal. If it were an error, it can have had no effect on the outcome of the appeal.

18. Another point Mr Zepinic sought to make concerned findings (for example, at [166] of the December judgment) that certain applications to the High Court for special leave to appeal were “vexatious proceedings” within the meaning of the Vexatious Proceedings Act. Mr Zepinic referred to the decision of the High Court in Collins (alias Hass) v The Queen (1975) 133 CLR 120; [1975] HCA 60, in which Barwick CJ noted the nature of an application for special leave to appeal, and said:

“But an application for leave or special leave to appeal is not in the ordinary course of litigation … First, until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed.” (at 122)

19. The submission overlooks the extended definition of “proceedings” in s 4 of the Vexatious Proceedings Act. “Proceedings” includes:

“(a)   any civil proceedings, criminal proceedings or proceedings before a tribunal, and

(b)   any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(c)   any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

(d)   any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

(e)   any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

20. I do not propose to deal with every aspect of the December judgment to which criticism has been directed nor with every criticism that can be found in the written submission. Clearly, what Mr Zepinic asserts as error does not fall within the category of “readily identifiable, readily rectifiable, inadvertent errors” (see Majak at [12]). To the extent that the submission purports to identify error, such errors are more properly characterised as possible grounds for appeal.

21. Neither Vito Zepinic nor Nina Zepinic has identified any proper basis for the exercise of the discretion conferred by UCPR 36.16(1) or (3A).

22. I therefore propose that each notice of motion be dismissed with costs.

23. In written submissions filed on behalf of the respondent an order that costs be assessed on an indemnity basis was sought. Although the conduct of the proceedings generally, and the present application in particular, provide some support for such a claim, no notice of motion has been filed formally seeking such an order. In those circumstances I would not propose at this stage any variation to the usual costs order.

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Decision last updated: 30 July 2019