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

BELL P: I agree with the reasons of Simpson AJA and the orders her Honour proposes.
MACFARLAN JA: I agree with Simpson AJA.
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.
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.
Vito Zepinic and Nina Zepinic appealed to this Court against the orders made in each proceeding. On 14 December 2018 this Court dismissed…

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: [2019] NSWCA 187
Decision Date: 30 July 2019

CaseChat Overview and Summary

In *Zepinic v Chateau Constructions (Aust) Ltd (No 2)*, the applicants sought to set aside judgments that had been made in appeal proceedings. The applicants contended that there were errors in the original judgments, which they wished to have rectified. The matter came before Bell P, Macfarlan JA, and Simpson AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the asserted errors in the judgments were of a nature that would permit the setting aside of those judgments under rule 36.16 of the Uniform Civil Procedure Rules 1999 (NSW). Specifically, the Court had to determine if the errors were readily identifiable, readily rectifiable, or inadvertent, as contemplated by the rule.

The Court reasoned that the applicants had not demonstrated that the errors they alleged were of the kind that would justify setting aside the dispositive orders already made. The applicants' notice of motion did not establish that the errors were readily identifiable or inadvertent, nor that they were readily rectifiable in the sense required by the rule. Consequently, the Court found no basis to interfere with the prior judgments.

Accordingly, the Court of Appeal dismissed the notices of motion filed by the applicants in both proceedings, ordering that the applicants pay the costs of Chateau Constructions (Aust) Ltd.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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