Zepinic v Chateau Constructions (Australia) Ltd - [2014] NSWCA 248

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zepinic v Chateau Constructions (Australia) Ltd [2014] NSWCA 248
Hearing dates: 1/07/2014
Decision date: 01 July 2014
Before: Emmett JA
Decision:
In proceeding 2013/302149:
1 The Notice of Appeal filed 13 November 2013 is dismissed.
2 The Appellants are to pay the Respondent's costs of the appeal including the costs of the Respondent's Notice of Motion filed on 24 December 2013, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers.
3 Direct that the Respondent serve upon the Appellants no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014:
3.1 the affidavit of Andrew Loel sworn on 30 June 2014 (filed in this proceeding and concerning quantification of costs);
3.2 a copy of these orders;
3.3 a letter notifying the Appellants that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Appellants to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis.
4 Service on the Appellants of the documents referred to in Order 3 above shall be deemed sufficient if effected by:
4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and
4.2 posting by ordinary airmail post addressed to Mrs Milla Zepinic, [address removed for publication] and
4.3 sending by email to [address removed for publication], and [address removed for publication].
5 The Appellants are to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 30 June 2014 by 15 July 2014.
In proceeding 2013/345739:
1 The Notice of Appeal filed 13 February 2014 is dismissed.
2 The Appellant is to pay the Respondent's costs of the appeal including the costs of the Respondent's Amended Notice of Motion filed on 5 May 2014, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers.
3. Direct that the Respondent serve upon the Appellant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014:
3.1 the affidavit of Andrew Loel sworn on 27 June 2014 (filed in this proceeding and concerning quantification of costs);
3.2 a copy of these orders;
3.3 a letter notifying the Appellant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Appellant to file and serve any affidavits or submissions pursuant to Order 5 and that the Respondent has submitted the costs should be assessed on an indemnity basis.
4 Service on the Appellant of the documents referred to in Order 3 above shall be deemed sufficient if effected by:
4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and
4.2 sending by email to [address removed for publication] and [address removed for publication].
5 The Appellant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 27 June 2014 by 15 July 2014.
In proceeding 2014/130563:
1 The Summons filed 30 April 2014 is dismissed.
2 The Applicant is to pay the Respondent's costs of the Summons, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers.
3 Direct that the Respondent serve upon the Applicant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014:
3.1 the affidavit of Andrew Loel sworn on 30 June 2014 (filed in proceeding No. CA 2013/302149 and concerning quantification of costs);
3.2 a copy of these orders;
3.3 a letter notifying the Applicant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Applicant to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis.
4 Service on the Applicant of the documents referred to in Order 3 above shall be deemed sufficient if effected by:
4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and
4.2 sending by email to [address removed for publication] and [address removed for publication].
5 The Applicant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 30 June 2014 by 15 July 2014.
In proceeding 2014/130569:
1 The Summons filed 30 April 2014 is dismissed.
2 The Applicant is to pay the Respondent's costs of the Summons, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers.
3 Direct that the Respondent serve upon the Applicant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014:
3.1 the affidavit of Andrew Loel sworn on 27 June 2014 (filed in proceeding No. CA 2013/345739 and concerning quantification of costs);
3.2 a copy of these orders;
3.3 a letter notifying the Applicant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Applicant to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis.
4 Service on the Applicant of the documents referred to in Order 3 above shall be deemed sufficient if effected by:
4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and
4.2 sending by email to [address removed for publication] and [address removed for publication].
5 The Applicant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 27 June 2014 by 15 July 2014.
[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: PROCEDURE - interlocutory applications - notices of appeal filed out of time - summary dismissal sought for incompetence - non-compliance with the Uniform Civil Procedure Rules 2005 (NSW) by not specifying an address for service in NSW - dismissal for non-attendance under UCPR r 13.6
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 4.2, 4.5, 13.6
Cases Cited: Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2009] NSWSC 1373
Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265
Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 909
Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326
Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804
Category: Interlocutory applications
Parties: Vito Zepinic (Applicant)
Chateau Constructions (Aust) Ltd (Respondent)
Representation: Counsel:
No appearance (Applicant)
D J Fagan SC with B Ilovski (Respondent)
Solicitors:
No appearance (Applicant)
Toomey Pegg Lawyers (Respondent)

File Number(s): 2013/302149; 2013/345739; 2014/130563; 2014/130569
Publication restriction: Addresses removed for publication
Decision under appeal

Citation:

Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326; Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804

Before:

Darke J

File Number(s):

2009/290598; 2013/132492

Judgment

EMMETT JA: I have before me a number of proceedings, all of which are connected and arise out of a dispute between Dr and Mrs Zepinic, on the one hand, and Chateau Constructions (Aust) Ltd (Chateau), on the other. All of the proceedings arise out of a contract made in February 2006 between Chateau, on the one hand, and Dr and Mrs Zepinic, on the other (the Contract). Under the Contract, Chateau was to perform residential building work at a property owned by Dr and Mrs Zepinic in Turramurra, New South Wales (the Property). Dr and Mrs Zepinic did not pay Chateau amounts due to it for two progress claims under the Contract. In January 2007, Chateau commenced proceedings in the Consumer, Trader and Tenancy Tribunal (the Tribunal) against Dr and Mrs Zepinic for recovery of the amounts owing to it. Chateau was successful in obtaining the relief that it sought in the Tribunal. Dr and Mrs Zepinic appealed out of time to the District Court from the decision of the Tribunal. Their appeal was dismissed. An application by Dr and Mrs Zepinic for leave to appeal to this Court was subsequently dismissed.

In September 2009, Chateau commenced proceedings in the Equity Division seeking a declaration that Dr and Mrs Zepinic had charged the Property with due payment to Chateau of the amounts owing under the Contract. Chateau also sought an order for the extension of the operation of a caveat lodged in relation to the Property. On 3 December 2009, a judge of the Equity Division declared that Dr and Mrs Zepinic had charged the Property with due payment of a specified sum of money plus interest, and granted leave to Chateau to file an amended summons for relief consequent upon the making of that declaration (see Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2009] NSWSC 1373).

On 8 April 2010, a judge of the Equity Division made orders for the sale of the Property (see Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265). However, the sale orders were stayed to allow Chateau the opportunity to convert the very many costs orders made against Dr and Mrs Zepinic into judgments, the amounts of which could be included in the amount charged on the Property. The orders made on 8 April 2010 were amended on 9 June 2010.

Thereafter, in 2013, Chateau filed a motion seeking interest on costs ordered in its favour. An objection by Dr Zepinic that he had not been served with the relevant process was overruled. On 5 July 2013, the Court determined Chateau's claim in relation to interest on costs (Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 909).

Dr Zepinic then filed a purported cross-claim and sought default judgment on the cross-claim. At the same time, Chateau filed a motion seeking dissolution of the stay ordered in the Equity Division in respect of the sale of the Property. On 13 September 2013, a judge of the Equity Division dismissed Dr Zepinic's default judgment application and ordered the dissolution of the stay on the sale of the Property (Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326).

Dr Zepinic also commenced separate proceedings against Chateau alleging breaches of the Contract and sought default judgment in relation to that application. On 15 November 2013, a judge of the Equity Division dismissed the default judgment application (Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804).

By notice of appeal filed on 13 November 2013, Dr and Mrs Zepinic purported to appeal from the orders made on 13 September 2013. By notice of appeal filed on 13 February 2014, they purported to appeal from the orders made on 15 November 2013. Both notices of appeal were filed out of time. While notices of intention to appeal had been filed prior to the filing of both notices of appeal, those notices of intention to appeal were not served on Chateau.

Chateau filed notices of motion seeking summary dismissal of both appeals, first on the basis that they were incompetent because they were appeals from interlocutory orders and no leave had been applied for or granted, and secondly, because they were filed out of time. Ultimately, that prompted Dr Zepinic to file summonses seeking leave to appeal. Both summonses were filed on 30 April 2014. Chateau's notices of motion for summary dismissal of the appeals and Dr Zepinic's summonses seeking leave to appeal were listed for hearing today.

I am satisfied from the material contained in affidavits sworn on 14 February 2014 and 6 June 2014 by Mr Andrew Loel that the notices of motion and material in support of them were served on Dr Zepinic and Mrs Zepinic at the only addresses that have been furnished by them. Neither the notices of appeal nor the summonses for leave comply with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in so far as they fail to specify an address for service in New South Wales (see rr 4.2 and 4.5). However, there is evidence that Dr Zepinic has notified an address in the United Kingdom both to the Court and to Chateau. There is also evidence that email addresses provided by Dr Zepinic have prompted responses, indicating that he receives emails sent to those addresses. I am satisfied from Mr Loel's affidavits that the material was also sent to those email addresses.

In addition, the affidavit evidence of Mr Loel (including a further affidavit sworn on 1 July 2014) indicates that notices of listing and correspondence from the Court, that make clear beyond doubt that these matters were to be dealt with today, have been sent to Dr and Mrs Zepinic at the address to which I have referred and to the email addresses. Dr Zepinic has been authorised by Mrs Zepinic to appear on her behalf. I am satisfied that Dr Zepinic and Mrs Zepinic have been notified in good time of the fact that the motions were to be listed for hearing today and that the summonses for leave to appeal would be before the Court today.

The summonses for leave to appeal were before the Registrar on 16 June 2014. On that day, there was no appearance for Dr Zepinic or Mrs Zepinic. The Registrar directed that the summonses for leave to appeal be listed for directions today. Notice dated 18 June 2014 was given by the Court to Dr Zepinic under r 13.6 of the UCPR, calling on Dr Zepinic to show cause why the matter should not be dismissed or struck out for non-attendance. When the matters were called on for hearing this morning, there was no appearance for Dr Zepinic or Mrs Zepinic. That was not unexpected, since there had been communications from Dr Zepinic indicating that he would not appear.

Chateau asks the Court to dismiss the summonses for leave to appeal on the basis that there has been no appearance for the applicant on two occasions. As I have said, Chateau also asks the Court to dismiss the appeals summarily, first on the basis that they are incompetent, and secondly, on the basis that they were filed out of time. I am satisfied, in all of the circumstances, that that is the appropriate course to be taken. I therefore propose to order that the summonses for leave to appeal be dismissed and that the appeals be dismissed.

In its notices of motion, Chateau asks for special orders concerning the costs of the appeals. It asks first that the appellants be ordered to pay Chateau's costs on an indemnity basis, and, secondly, that the Court fix a lump sum in respect of the costs. In support of that latter application, Mr Loel has sworn affidavits in each appeal, one on 30 June 2014, in respect of appeal 2013/302149 and one on 27 June 2014, in respect of appeal 2013/345739. There is considerable detail in the affidavits and senior counsel for Chateau frankly acknowledges that the amounts claimed are somewhat high, and certainly much higher than would ordinarily be expected in relation to proceedings that have reached the stage that these appeals have reached.

Those affidavits have not been made available to Dr Zepinic. Accordingly, before the prayers for relief in relation to costs are considered, I propose to direct that Dr Zepinic be notified of the application for costs to be paid on an indemnity basis and for the costs to be assessed as a lump sum. I propose to direct that the affidavits be served on Dr Zepinic at the address he has provided, together with a copy of the orders that I propose to make and a letter notifying him that the Court will proceed to determine the gross sum for costs and to consider whether the costs should be assessed on an indemnity basis 14 days after the time limited for Dr Zepinic to file and serve any affidavits or submissions that he wishes to make in opposition to the proposed orders. I propose to direct him to file any such affidavits and submissions no later than 15 July 2014. I also propose to direct that the material be served on him by being posted by ordinary air mail to the address that has been furnished, as well as being sent to the email addresses that have been furnished by Dr Zepinic.

In proceeding 2013/302149, I propose to make orders in terms of the draft orders as amended, which I have initialled and dated with today's date.

In proceeding 2013/345739, I propose to make orders in terms of the draft orders as amended, which I have initialled and dated with today's date.

In proceeding 2014/130563, I propose to make orders in terms of the draft orders as amended, which I have initialled and dated with today's date.

In proceeding 2014/130569, I propose to make orders in terms of the draft orders as amended, which I have initialled and dated with today's date.

**********

Decision last updated: 12 August 2014

Medium Neutral Citation:	Zepinic v Chateau Constructions (Australia) Ltd [2014] NSWCA 248
Hearing dates:	1/07/2014
Decision date:	01 July 2014
Before:	Emmett JA
Decision:	In proceeding 2013/302149: 1 The Notice of Appeal filed 13 November 2013 is dismissed. 2 The Appellants are to pay the Respondent's costs of the appeal including the costs of the Respondent's Notice of Motion filed on 24 December 2013, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3 Direct that the Respondent serve upon the Appellants no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 30 June 2014 (filed in this proceeding and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Appellants that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Appellants to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Appellants of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 posting by ordinary airmail post addressed to Mrs Milla Zepinic, [address removed for publication] and 4.3 sending by email to [address removed for publication], and [address removed for publication]. 5 The Appellants are to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 30 June 2014 by 15 July 2014. In proceeding 2013/345739: 1 The Notice of Appeal filed 13 February 2014 is dismissed. 2 The Appellant is to pay the Respondent's costs of the appeal including the costs of the Respondent's Amended Notice of Motion filed on 5 May 2014, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3. Direct that the Respondent serve upon the Appellant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 27 June 2014 (filed in this proceeding and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Appellant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Appellant to file and serve any affidavits or submissions pursuant to Order 5 and that the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Appellant of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 sending by email to [address removed for publication] and [address removed for publication]. 5 The Appellant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 27 June 2014 by 15 July 2014. In proceeding 2014/130563: 1 The Summons filed 30 April 2014 is dismissed. 2 The Applicant is to pay the Respondent's costs of the Summons, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3 Direct that the Respondent serve upon the Applicant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 30 June 2014 (filed in proceeding No. CA 2013/302149 and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Applicant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Applicant to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Applicant of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 sending by email to [address removed for publication] and [address removed for publication]. 5 The Applicant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 30 June 2014 by 15 July 2014. In proceeding 2014/130569: 1 The Summons filed 30 April 2014 is dismissed. 2 The Applicant is to pay the Respondent's costs of the Summons, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3 Direct that the Respondent serve upon the Applicant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 27 June 2014 (filed in proceeding No. CA 2013/345739 and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Applicant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Applicant to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Applicant of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 sending by email to [address removed for publication] and [address removed for publication]. 5 The Applicant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 27 June 2014 by 15 July 2014. [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:	PROCEDURE - interlocutory applications - notices of appeal filed out of time - summary dismissal sought for incompetence - non-compliance with the Uniform Civil Procedure Rules 2005 (NSW) by not specifying an address for service in NSW - dismissal for non-attendance under UCPR r 13.6
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 4.2, 4.5, 13.6
Cases Cited:	Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2009] NSWSC 1373 Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265 Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 909 Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326 Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804
Category:	Interlocutory applications
Parties:	Vito Zepinic (Applicant) Chateau Constructions (Aust) Ltd (Respondent)
Representation:	Counsel: No appearance (Applicant) D J Fagan SC with B Ilovski (Respondent) Solicitors: No appearance (Applicant) Toomey Pegg Lawyers (Respondent)
File Number(s):	2013/302149; 2013/345739; 2014/130563; 2014/130569
Publication restriction:	Addresses removed for publication
Decision under appeal	Citation: Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326; Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804 Before: Darke J File Number(s): 2009/290598; 2013/132492