Zepinic v Malanos - [2020] NSWCA 293

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Zepinic v Malanos [2020] NSWCA 293
Hearing dates: On the papers
Date of orders: 17 November 2020
Decision date: 17 November 2020
Before: Bell P at [1]; White JA at [16]
Decision:
Application for leave to appeal dismissed with costs.

Catchwords:
APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.

Legislation Cited:
Vexatious Proceedings Act 2008 (NSW) ss 13, 14
Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Cases Cited:
Application of Vito Zepinic (No 2) [2020] NSWSC 693
Application of Vito Zepinic [2020] NSWSC 269
Vito Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291
Zepinic v Chateau Constructions (Aust) Ltd [2019] HCASL 326
Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582

Category: Principal judgment
Parties: Vito Zepinic (Applicant)
Nicholas Craig Malanos (Respondent)
Representation: Solicitors:
Vito Zepinic (Applicant in person)

File Number(s): 2020/205870
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 761

Date of Decision:

17 June 2020

Before:

Kunc J

File Number(s):

2009/290598; 2017/353311

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 May 2017, in Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582, Pembroke J made orders under the Vexatious Proceedings Act 2008 (NSW) (the Act) to the effect that the applicant, Mr Vito Zepinic (Mr Zepinic), was prohibited from instituting proceedings in New South Wales relating to or arising out of the subject matters of various proceedings concerning the construction of a residential property in Turramurra. The respondent, Mr Nicholas Malanos (Mr Malanos), was the Trustee appointed to sell this residential property.

Mr Zepinic applied for leave under the Act to commence proceedings against Mr Malanos in relation to his conduct as Trustee and his claim for remuneration. On 19 March 2020, Kunc J (the primary judge) dismissed Mr Zepinic’s application as vexatious for the purposes of s 15(1) of the Act. On 7 April 2020, Mr Zepinic filed a Notice of Motion seeking to set aside the primary judge’s dismissal of his leave application. This Motion was also dismissed. A further Notice of Motion (the 12 June 2020 Motion) was filed by Mr Zepinic seeking to set aside the dismissal of the Motion of 7 April 2020. The primary judge stayed and dismissed this Motion under s 13 of the Act. Mr Zepinic sought leave from this Court to appeal the primary judge’s dismissal, without leave under s 14(2) of the Act.

The principal issue before the Court was whether Mr Zepinic’s application…

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.

Continue reading Zepinic v Malanos

Details

AGLC: Zepinic v Malanos [2020] NSWCA 293
Case: [2020] NSWCA 293
Decision Date: 17 November 2020

CaseChat Overview and Summary

The applicant, Zepinic, sought leave to appeal a decision of the District Court of New South Wales. Malanos was the respondent. The core of the dispute concerned the applicant's status as a person subject to a vexatious proceedings order made under the *Vexatious Proceedings Act 2008* (NSW). The Court of Appeal of New South Wales was required to determine whether the applicant's application for leave to appeal fell within the scope of that existing order and, if so, whether the application could proceed without the necessary leave from the court to institute such proceedings.

The primary legal issue before the Court of Appeal was whether the applicant, having been made subject to a vexatious proceedings order, was permitted to initiate an application for leave to appeal without first obtaining specific authorisation under section 6(1) of the *Vexatious Proceedings Act 2008* (NSW). This section requires a person subject to such an order to obtain leave from the relevant court before commencing any new proceedings. The court also considered whether, even if the procedural hurdle were overcome, the application for leave to appeal had any merit.

The Court of Appeal reasoned that the applicant's application for leave to appeal was indeed an action that fell within the ambit of the vexatious proceedings order. As such, the applicant was legally required to seek and obtain leave from the Court of Appeal itself to institute this application. The applicant had failed to do so. Consequently, the application was dismissed on this procedural ground alone. Furthermore, the court indicated that, had the procedural requirement been met, the application for leave to appeal would have been refused on its merits. The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Zepinic v Malanos [2020] NSWCA 293
Hearing dates:	On the papers
Date of orders:	17 November 2020
Decision date:	17 November 2020
Before:	Bell P at [1]; White JA at [16]
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	APPEAL – applicant for leave to appeal subject to vexatious proceedings order – application falling within scope of the order – no leave sought or granted under Vexatious Proceedings Act2008 (NSW) to institute application for leave to appeal – application to be dismissed by reason of that fact – application would in any event have been refused.
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW) ss 13, 14 Uniform Civil Procedure Rules 2005 (NSW) r 36.16
Cases Cited:	Application of Vito Zepinic (No 2) [2020] NSWSC 693 Application of Vito Zepinic [2020] NSWSC 269 Vito Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291 Zepinic v Chateau Constructions (Aust) Ltd [2019] HCASL 326 Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582
Category:	Principal judgment
Parties:	Vito Zepinic (Applicant) Nicholas Craig Malanos (Respondent)
Representation:	Solicitors: Vito Zepinic (Applicant in person)
File Number(s):	2020/205870
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 761 Date of Decision: 17 June 2020 Before: Kunc J File Number(s): 2009/290598; 2017/353311