Solicitors:
Vito Zepinic - second plaintiff in person
Andrew Loel, Toomey Pegg Lawyers - for the defendant
File Number(s): 2016/097515
[2]
Introduction
This proceeding, which was commenced in March this year after nine years of litigation over the same subject matter, is a scandalous waste of public resources and private money. It is driven by the second plaintiff, Dr Zepinic, whose arguments and submissions, it must regrettably be said, are indulgent and irrational.
The comments that I made in Donnelly v Australia and New Zealand Banking Group Limited [2016] NSWSC 263 at [21] are just as appropriate here as they were in that case:
…The public resource of the courts is not available to indulge endlessly the misconceived whims of disappointed litigants. The public interest in the finality of litigation requires that an end be brought to hopeless causes. It is time to close the book. And it is appropriate to repeat the wisdom of Lord Wilberforce in The Ampthill Peerage [1977] AC 547 at 569:
… the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and there are cases where the law insists on finality.
There are two applications before me. On 3 June, the defendant (Chateau) filed a notice of motion seeking summary dismissal of the proceedings. On 8 June, Dr Zepinic responded with an absurd notice of motion of his own, seeking, among many other things, 'default judgment' constituted by an order to set aside the contract of the sale of land dated 15 November 2014 between Nicholas Craig Malanos, the court appointed trustee for sale, as vendor, and Yin Ye as purchaser. The property in question was Dr Zepinic's former property at 34 Turramurra Avenue, Turramurra. The application was made notwithstanding that the sale has long since been completed and the purchaser's title presumably registered.
[3]
The Property
Dr Zepinic and his wife Milla were at all material times prior to 12 December 2013, the registered proprietors of the property. On that date, title to the property vested in Mr Malanos as trustee for the sale pursuant to orders of this Court made on 8 April 2010 in proceeding number 2009/290598.
[4]
The Building Contract
The appointment of the trustee for sale had its origin in the failure of Dr Zepinic to pay amounts due to Chateau pursuant to a building contract. The contract was entered into in February 2006. By December, Dr Zepinic's relationship with Chateau had erupted in disputation. He did not pay Chateau's progress claim No. 8 dated 28 November 2006 in the amount of $125,000.00 or Chateau's progress claim No. 9 dated 20 December 2006 in the amount of $92,000.00.
CTTT Proceedings
On 18 January 2007, Chateau commenced proceedings against Dr & Mrs Zepinic in the Consumer, Trader and Tenancy Tribunal (CTTT). They responded with a cross claim alleging defects in the building work. Chateau sought against Dr & Mrs Zepinic, among other things, an order that they pay Chateau the sum of $223,000.00.
The CTTT Proceedings were heard by Senior Member Paull on 26 and 27 May 2008 and on 22, 23 and 24 September 2008. Senior Member Paull reserved her decision and published her reasons on 18 December 2008. She comprehensively rejected the claims by Dr Zepinic and found in favour of Chateau.
[5]
Other Proceedings Related to the Property
This proceeding is the latest in a farrago of unnecessary and wasteful litigation that derives from Dr Zepinic's dissatisfaction with the adverse result that he achieved in the CTTT. Following the CTTT decision, Dr Zepinic initiated the following unsuccessful appeals:
1. District Court of New South Wales proceeding 2009/335054, being an appeal against the decision of the CTTT (the District Court Appeal Proceeding);
2. Court of Appeal proceeding 2010/45208, being an application for leave to appeal against the decision in the District Court proceedings (the 2010 Court of Appeal Proceeding).
Following the commencement by Chateau of proceeding 2009/290598 in this court to enforce its charge over the property, and to obtain an order for the appointment of a trustee for sale, Dr Zepinic initiated three separate appeals to the Court of Appeal and a special leave application to the High Court of Australia. They were:
1. Court of Appeal proceeding 2013/302149 in respect of orders in the charge proceeding (the 2013 Court of Appeal Proceeding);
2. Court of Appeal proceeding 2014/130563 in respect of orders in the charge proceeding (the 2014 Court of Appeal Proceeding);
3. Court of Appeal proceeding 2015/326487 in respect of orders in the charge proceeding (the 2015 Court of Appeal Proceeding);
4. Application for special leave to appeal to the High Court of Australia No S86/2016 in respect of orders in the 2013 Court of Appeal Proceeding (the 2016 Special Leave Application).
In addition, Dr Zepenic initiated the following proceedings relating to his original allegations that had been ventilated and dismissed in the CTTT, namely that there were defects in the building work carried out by Chateau:
1. Supreme Court proceeding 2013/132492 (the 2013 Supreme Court Proceeding);
2. Court of Appeal proceeding 2013/345739 (the Second 2013 Court of Appeal Proceeding);
3. Court of Appeal proceeding 2014/130569 (the Second 2014 Court of Appeal Proceeding);
4. Application for special leave to appeal to the High Court of Australia No S230/2015 (the 2015 Special Leave Application).
Dr Zepenic has failed at every turn. Every one of his actions has been determined against him. Eventually, after numerous appearances before other judges of this court, he came before me on 5 September 2016. On that date, I made orders and gave short reasons finally disposing of Chateau's proceeding number 2009/290598. I also made orders on that date finally disposing of this proceeding. These are the reasons for those orders.
[6]
Nina Zepinic
Dr Zepinic's daughter Nina is central to his allegations in this proceeding. He now contends that in some way she was the owner of the Turramurra property, although it is not clear why that matters in any legally relevant sense. Nina left Australia in 2008 to pursue studies overseas and currently resides in Germany. She has played no active part in court. I allowed Dr Zepinic to put submissions on her behalf. She swore an affidavit but there was no opportunity to cross examine her.
The title searches demonstrate that the registered proprietors of the property at all material times prior to 12 December 2013 were Vitomir Zepinic and Milla Zepinic. In addition, there are numerous other documents and admissions that indicate that Vitomir Zepinic and Milla Zepinic were the effective practical, as well as legal, owners of the property at all material times prior to that date. They include:
1. The building contract is signed by both Vitomir Zepinic and Milla Zepinic as the owners of the property. At pages 2 and 4 of the building contract there is a note which states 'Where…the contract is to be signed by an authorised agent of the owner, the capacity of the person signing the contract, eg. director, must be inserted'. Dr & Mrs Zepinic did not state in the building contract that they were signing it as an authorised agent, rather they each signed it twice (at pages 2 and 4) as the 'owner'.
2. Chateau's points of claim in the CTTT filed on 14 March 2007 alleged, inter alia, that:
(i) At all material times the Respondents [Vitomir Zepinic and Milla Zepinic] were the registered proprietors of a property known as 34 Turramurra Avenue, Turramurra in the state of New South Wales (the Respondents' Property);
(ii) On 23 February 2006 the Applicant [Chateau] and the Respondents [Vitomir Zepinic and Milla Zepinic] entered into a contract known as an Office of Fair Trading Home Building Contract (as amended at February 2004) for the Applicant to build a dwelling on the Respondents' Property.
1. In their reply filed on 15 May 2007 to Chateau's points of claim in the CTTT, Dr & Mrs Zepinic admitted that they were at all material times the registered proprietors of the property and that they entered into the building contract for Chateau to build a dwelling on the property. They did not allege that they were not the owners of the property. Nor did they allege that they entered into the building contract as authorised agents for Nina Zepinic or in any other capacity inconsistent with them being the owners of the property;
2. In their cross-claim filed on 25 June 2007 in the CTTT, Dr & Mrs Zepinic alleged that they were, at all material times, the registered proprietors of the property and that they entered into the building contract on 23 February 2006. They did not allege that they had transferred their interest in the property to Nina. Nor did they allege that they entered into the building contract as authorised representatives of Nina or in any other capacity inconsistent with them being the owners of the property.
I should add that the hearing in the CTTT took five days (26 and 27 May 2008 and 22-24 September 2008). Dr & Mrs Zepinic were represented by counsel and solicitors at the first two days of the trial and were self-represented for the final three days of the trial. Nothing in the transcript indicates that Nina was the owner of the property at any material time or that Dr & Mrs Zepinic were not the owners of the property.
In addition, Dr & Mrs Zepinic relied in the CTTT on a statement by Nina dated 22 June 2007 in which she did not assert that she was the owner of the property. Further still, the following affidavits and statements relied on in the CTTT contain no averment nor any hint that Dr & Mrs Zepinic were not the owners of the property, or that Nina was the true owner: affidavit of Vitomir Zepinic sworn 20 May 2008, affidavit of Vitomir Zepinic of 22 May 2008, statement of Milla Zepinic dated 22 June 2007 and statement of Vitomir Zepinic dated 9 July 2007.
It is no surprise that the orders of the CTTT made on 15 April 2009 to give effect to the Tribunal's findings refer to Vitomir Zepinic and Milla Zepinic as the 'homeowners'. Nor is it a surprise that when Dr & Mrs Zepinic appealed from the decision of the CTTT, they did not challenge the premise that they were the owners of the property.
There are many, numerous, almost endless, further examples of statements and admissions by Dr Zepinic which are inconsistent with his foundational proposition in this proceeding, namely, for what it is worth, that Nina owned the property. They are conveniently set out in the careful and comprehensive affidavit sworn on 17 June 2016 by Mr Loel, the solicitor for Chateau. I adopt them but shall not repeat them.
There are also many examples of findings or assumptions by this court which are predicated upon Dr & Mrs Zepinic (and not Nina) being the owners of the property. In his reasons given on 8 April 2010, [2010] NSWSC 265, in a fifth judgment in the proceeding at an early stage when the litigation was already threatening to get out of control, Slattery J set the scene by stating:
2. Chateau Constructions (Aust) Pty Limited (Chateau), a builder, is in dispute with Dr & Mrs Zepenic, the owners of a residential property in Turramurra.
The root of Dr Zepinic's misguided claim in this latest proceeding appears to be a document described as 'Statement Regarding Our Property' dated 12 March 2004 and the cover page of an unstamped contract for sale of land dated 15 June 2004. I have reservations about the reliability and veracity of those documents but at face value they may reveal an intention to hold the property on trust for Nina. If that be the case, then I am afraid any such trust is both irrelevant and too late. The contention that Nina is the true owner by reason of a trust created in 2004 cannot avail Dr Zepinic. It certainly cannot justify the 'setting aside' of an already completed arms-length contract between the trustee and a third party. The argument entirely ignores the legal significance of the paramount interest of the registered proprietor, which is at the core of our system of property dealings: Section 42 Real Property Act 1900 (NSW).
During the many hearings before Slattery J, his Honour gave Dr Zepinic more opportunities than he deserved to develop his arguments and present his evidence - always with unfailing courtesy and patience. If the contention that Nina was the owner were at all relevant, then he could have raised it, and Chateau could have tested it - if indeed it mattered. Six years later, in yet more litigation in which Dr Zepenic has continued to advance hopeless arguments, there is no longer any need to be patient. The ill-considered obsessiveness of his contentions is apparent from the following exchange:
HIS HONOUR:
Am I right in thinking that the second last paragraph on page 4 [of Exhibit 3] is the crux of your argument? In other words it is a central proposition in your argument.
ZEPINIC: That's correct your Honour.
HIS HONOUR: What you say there is that the issue for me to decide is whether there is reason to believe that the builder should be rewarded for any payment despite all the various matters of which you complain.
ZEPINIC: That's correct your Honour.
HIS HONOUR: You understand, don't you, that the issue raised by the defendant's notice of motion is whether as a matter of law there is any seriously arguable case that you raise in your statement of claim.
ZEPINIC: Yeah, I understand your Honour.
I have no hesitation in concluding that the issues that Dr Zepinic seeks to raise by his statement of claim in this proceeding not only fail to raise an arguable issue, but that they represent an indulgent, wasteful and repetitive exercise in going over old ground. The contention that Nina was the true owner of the property may be new but as I have said, it cannot avail Dr Zepinic. It has been superseded by subsequent events. And he only has himself to blame. But there was never anything in it, in any event.
Dr Zepinic appears to have out-distanced, and probably exhausted, all of his legal advisors. At various times, he has had legal representation including from LAC Lawyers, (January 2007 to March 2007); Schreuder Partners Compensation Lawyers, (March 2007 to October 2007); Gray & Perkins Lawyers, (December 2007 to 18 September 2008); Makinson & d'Apice Lawyers, (December 2008 to February 2009); Macquarie Lawyers, (5 March 2009 to 11 September 2009); Hancock Alldis & Roskov Lawyers & Notaries, (14 September 2009 to 28 September 2009 and from 7 October 2009 to November 2009) and Stacks Goudkamp Lawyers, (8-11 October 2013). This proceeding, in which he is representing and advising himself, appears to be a last desperate throw of the dice. But it is pointless and doomed to fail.
The costs incurred by Chateau in this litigation have been horrifying. All because Dr Zepinic has not been prepared to accept the initial decision of the CTTT. Chateau's assessed costs in the CTTT proceedings and the subsequent assessment process were in excess of $417,000. Its costs in all of the other failed litigation initiated by Dr Zepinic must also be extensive.
Subject to giving Dr Zepinic an opportunity to be heard, I will entertain appropriate applications by Chateau for an indemnity costs order and an order pursuant to the Vexatious Proceedings Act 2008 (NSW). It is pertinent to observe that Dr Zepinic has already recently been warned by the Court of Appeal. In Zepinic v Chateau Constructions (Aust) Limited [2016] NSWCA 50, the Court stated:
25. One further matter should be mentioned … A litigant who continues to advance a point when it has repeatedly been determined against him or her may be committing an abuse of the processes of the court, and may be bringing proceedings which fall within the definition of 'vexatious proceedings' under the Vexatious Proceedings Act 2008 (NSW). It should not be thought that Dr Zepinic can repeatedly bring proceedings against Chateau Constructions agitating the same matters.
I repeat the orders that I made on 5 September 2016:
1. Order that the proceeding be dismissed.
2. Order that the plaintiffs' notice of motion filed on 8 June 2016 be dismissed.
3. Stand over proceedings for mention on Friday, 16 September 2016 at 10 am.
4. Costs reserved.
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Decision last updated: 09 September 2016