Zepinic v Chateau Constructions (Aust) Ltd (No 3)

[2014] NSWCA 366

Court of Appeal

New South Wales

Case Title:

Zepinic v Chateau Constructions (Aust) Ltd (No 3)

Medium Neutral Citation:

[2014] NSWCA 366

Hearing Date(s):

On the papers

Decision Date:

28 October 2014

Before:

Basten JA; Gleeson JA; Leeming JA

Decision:

The notice of motion filed 30 April 2014 is dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE - application to vary final judgment - sufficient cause not shown - application dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases Cited:

Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

Category:

Interlocutory applications

Parties:

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

Representation

- Solicitors:

Solicitors:
Toomey Pegg Lawyers (Respondent)

File Number(s):

2010/45208

Decision Under Appeal

- Before:

Basten JA; Gleeson JA; Leeming JA

- Citation:

[2014] NSWCA 27; [2014] NSWCA 99

- Court File Number(s):

2010/45208

JUDGMENT

1. THE COURT: On 18 February 2014, this Court dismissed Dr Zepinic's application to review an earlier judgment of McColl JA: Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27. On 3 April 2014, pursuant to a timely application made by Chateau Constructions in accordance with r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), this Court varied the costs orders it had previously made: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99. By notice of motion filed 30 April 2014, Dr Zepinic seeks orders setting aside the judgments entered by this Court on 18 February and 3 April 2014. His application is accompanied by a lengthy affidavit affirmed by him, repeating the serious and scandalous allegations against Chateau Constructions and its legal representatives of which mention was made in this Court's first judgment at [22].

2. Subsequently, there has been a series of emails between Dr Zepinic and the Registrar of this Court. The correspondence includes what purports to be a letter from an English solicitor stating that:

   "Mr Zepinic currently has an appeal before the First Tier Tribunal, Immigration and Asylum Chamber, which is due to be heard on 11 November 2014. As this is an in country application, he is not allowed to travel outside of the UK while this appeal is in progress.

   If you [sic] were to do so it would abandon his pending appeal."

3. Most recently, Dr Zepinic has sought to supplement the evidence in support of his motion by a document dated 25 September 2014 concerning the mode of service between Australia and Austria.

4. This Court dealt, on a final basis, with the proceeding brought by Dr Zepinic by its judgments on 18 February and 3 April 2014. There is now no longer power under UCPR r 36.16 to set aside or vary those judgments and orders. However, Dr Zepinic applies under UCPR r 36.15(1), which requires him to show "sufficient cause" that "the judgment was given or entered, or the order was made, irregularly, illegally or against good faith". (Dr Zepinic also invokes other paragraphs of the rules which have no bearing on the Court's power to reopen a final judgment.)

5. No useful purpose would be served by summarising the material which has been supplied in support of the application. None of it comes close to establishing a sufficient cause for calling into question this Court's decision that Dr Zepinic's application to review the judgment of McColl JA in his favour should be dismissed. As was said in this Court's reasons of 18 February 2014, that application was based on "a fundamental misconception". Finally, to the extent that complaint is made regarding Dr Zepinic's application for an adjournment, and the Registrar's offer for him to be heard by telephone, those matters were addressed squarely in the Court's reasons of the same date.

6. The notice of motion filed 30 April 2014 is dismissed.

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