Zepinic v Chateau Constructions [2020] NSWCA 291 | Case summary

Court of Appeal (NSW)|2020-11-17|Before: Bell P, White JA, Lindsay J, Pembroke J, Stevenson J

Background

In around February 2006, Mr Zepinic and his wife, Mrs Milla Zepinic, contracted with the respondent, Chateau Constructions (Aust) Ltd (Chateau), a construction company, for building work to be carried out on a residential property in Turramurra. Disputes arose between the parties, and the respondent commenced proceedings in the Consumer, Trader and Tenancy Tribunal claiming unpaid fees. Mr and Mrs Zepinic cross-claimed against Chateau, alleging defects in the work done. Chateau succeeded in its claim and the Zepinics failed in their cross-claim, which was dismissed.
Mr and Mrs Zepinic's appeal to the District Court against this decision was unsuccessful. They sought leave to appeal to this Court against the decision in the District Court, but were again unsuccessful.
Since then, Mr Zepinic, sometimes jointly with either his wife or his daughter, Ms Nina Zepinic, has instituted numerous proceedings, including applications in the Equity Division of the Supreme Court, appeals or applications for leave to appeal in this Court, and applications for special leave to the High Court, which have been largely, if not entirely, unsuccessful.
On 26 September 2016, Chateau filed two notices of motion, seeking orders first against Mr and Mrs Zepinic, under ss 8(7)(a) and (b) of the Vexatious Proceedings Act, and secondly seeking similar orders against Mr Zepinic and his daughter. As outlined at [2] above, Pembroke J made the orders as sought by Chateau in May 2017.
Despite the vexatious proceedings order against him, Mr Zepinic filed the 23 March 2020 Motion in these proceedings without first obtaining leave to do so.

Vexatious Proceedings Act

Section 14 of the Vexatious Proceedings Act deals with applications for leave to institute proceedings, with sub-section (2) stating that the "applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting".
Pursuant to s 13(1), a person the subject of a vexatious proceedings order may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under s 16.
"Proceedings" are defined in s 4 of the Act to include "any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
By s 13(2), if proceedings are instituted in contravention of s 13(1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under s 13.
Pursuant to s 13(3), any proceedings that are stayed by s 13(2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under s 13(4).
Sections 13(4)-(5) outline the orders that the authorised court may make, of its own motion or on the application of a person referred to in s 8(4), as follows: "(4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make: (a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and (b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and (c) any other order in relation to the proceedings that it considers appropriate, including an order for costs. (5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4)".

Submissions and consideration

The submissions filed in support of the application for leave to appeal by Mr Zepinic dated 7 July 2020 for the most part simply set out in chronological form events and litigation over the past 9 years. Only the last five of 45 paragraphs address the decision of the primary judge. Two of these paragraphs are purely factual, one simply reciting [3] of his Honour's decision. The remaining three paragraphs are a combination of propositions of law which Mr Zepinic does not relate to the primary judge's decision, references to provisions of the Vexatious Proceedings Act and an assertion that "the judgment/orders delivered by Pembroke J on 25 May 2017, as well as subsequent judgments related to, are invalid (void) and must be set aside".
These submissions fail to disclose any basis upon which leave to appeal would be granted from the decision of the primary judge. That fact alone is sufficient to dispose of the application for leave to appeal.
The respondent Chateau, however, raised a threshold point in written submissions filed on 17 August 2020 in which it sought the following declarations and orders: "(a) a declaration pursuant to section 13(4)(a) of the Vexatious Proceedings Act that the proceeding is a proceeding to which sections 13(2) and (3) of the Vexatious Proceedings Act apply; (b) a declaration pursuant to section 13(4)(c) of the Vexatious Proceedings Act that the proceeding was stayed by operation of section 13(2) of the Vexatious Proceedings Act until it was dismissed by the Court on 6 August 2020 by operation of section 13(3) of the Vexatious Proceedings Act; (c) an order pursuant to section 13(4)(c) of the Vexatious Proceedings Act and sections 98(1) and (4) of the Civil Procedure Act 2005 that Mr Zepinic pay Chateau's costs of and incidental to this proceeding on a full indemnity basis in a gross sum to be specified by the Court; and (d) such other declarations and orders as the Court considers appropriate."
These orders reflected the fact that the application for leave to appeal to this Court itself amounted to the institution of proceedings within the meaning of the Vexatious Proceedings Act and had been brought without leave, noting, as did Stevenson J in Chateau Constructions (Aust) Ltd v Zepinic [2020] NSWSC 266 at [11]: "Section 14(3) places a very heavy burden on an applicant for leave requiring that person to: 1. list all occasions on which the applicant has hitherto applied for leave; 2. list all other proceedings the applicant has instituted in Australia; and 3. disclose all facts material to the application, whether supporting or adverse to the application, that are known to him."
At a directions hearing on 17 August 2020, the Registrar directed Mr Zepinic, by 14 September 2020, to file submissions as to why he contended that the Vexatious Proceedings Act did not apply to these proceedings and as to why he did not require leave to institute the application for leave to appeal. The Registrar also on that occasion reserved to the Court the decision whether to call upon the respondent to respond to those submissions and ordered the respondent to provide a letter outlining its costs incurred by 21/09/2020 or 7 days after the appellant's submissions were filed. The Registrar also further reserved to the Court whether that letter was sufficient evidence for a gross sum costs order to be made.
Whilst Mr Zepinic did file lengthy submissions on 10 September 2020, they did not adequately address the issue in question, namely, why the Summons seeking leave to appeal should not be taken to have been dismissed under s 13 of the Vexatious Proceedings Act.
Mr Zepinic's principal contention as to why the primary judge erred in declaring that the proceedings before him were proceedings to which the Vexatious Proceedings Act applied was that the vexatious proceedings order should not have been made against him in the first place, due to its alleged "invalidity". This was to repeat an argument which had been put and rejected in the Court of Appeal previously, and was not addressed to his application for leave to appeal to this Court from the decision of the primary judge.
Mr Zepinic submitted that "it is a fact" that he "does not need leave of the Court in his application to set aside vexatious proceedings orders and writs for levy of property - both Chateau's actions taken and delivered judgments/orders were invalid (void)". He further submitted that he did not require leave as he was not "instituting" proceedings against Chateau, but was appealing to "set aside the incident error of judgment caused by nullity (non-existing) documents". These submissions are largely incoherent but in any event, supply no reason as to why these proceedings do not fall within the terms of the vexatious proceedings order and why Mr Zepinic did not require leave to institute the application for leave to appeal.
Under the heading "Summary", Mr Zepinic contended that justice should be seen to be done, that "courts have no power to disobey, alter, or amend the statutory requirements", that "courts owed the duty of fairness and equality to every litigant", that there was "evident abuse of a process of the court" and that attributes of "impartiality, equality and fairness" are central to the administration of justice. Submissions of this kind and at this level of assertive generality do not assist the Court or Mr Zepinic. They provide no reason why the Vexatious Proceedings Act should not operate according to its terms.
I accept Chateau's submission that the underlying proceedings were clearly proceedings of the kind to which the vexatious proceedings order related, and as Mr Zepinic did not obtain leave to institute the proceedings under s 16 of the Vexatious Proceedings Act, the proceedings before the primary judge were correctly stayed until their dismissal by the Court on 6 August 2020, by operation of ss 13(2)-(3) of that Act.
The same consequences flow in the context of the application for leave to appeal.
On 5 November 2020, Mr Zepinic filed what purported to be "Amended Submissions" with attachments. These were filed without leave. Nothing in these submissions (which are not amended submissions at all but additional submissions) advances Mr Zepinic's case.
The foregoing conclusion leads to a consideration of the question of costs, noting that Chateau seeks its costs on a "full indemnity basis in a gross sum to be specified by the Court." In this respect, Chateau submitted that Mr Zepinic's application was vexatious and that his failure to seek, let alone obtain, leave to institute the proceedings, given what must by now be his close familiarity with the requirements of the Vexatious Proceedings Act, founded an inference that the "institution of the proceeding was made for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202 at [21], cited with approval in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 231 and 233; [1993] FCA 801."
Chateau further submitted that, whilst it is not necessary to warn that indemnity costs will be sought, such a warning makes success on an application for indemnity costs more likely, citing Horseshoe Pastoral Co Pty Ltd v Murray Smith t/as South Coast Tile and Slate Co [1995] NSWCA 200. Chateau annexed to its submissions two letters from its solicitors to Mr Zepinic, dated 26 June 2020 and 12 August 2020 respectively. In the first of those letters, Mr Zepinic was warned that if he instituted proceedings seeking leave to appeal without obtaining the leave of the Court under the Vexatious Proceedings Act, any such summons was likely to be dismissed by the Court and indemnity costs would be sought. In the second letter, which post-dated the filing of the application for leave to appeal, Toomey Pegg proposed a walk away offer which was obviously not accepted by Mr Zepinic. This letter again pointed out the fundamental difficulty confronting Mr Zepinic's attempt to proceed without leave.
In the circumstances, it is plain and entirely appropriate that Chateau should be awarded its costs on an indemnity basis.
It is also appropriate, in my opinion, and in the interests of justice that a lump sum costs order should be made.
As directed by the Registrar, the solicitors for Chateau supplied the Court, in a letter of 19 October 2020 copied to Mr Zepinic, details of its costs in relation to Chateau's costs in these proceedings. That letter annexed five invoices totalling $14,292.34 excluding GST. In considering the reasonableness of those costs, I note that the White Folder exceeds 150 pages and that Mr Zepinic's Summary of Argument comprises 10 single spaced pages.
In my opinion, it is prima facie appropriate to order Mr Zepinic to pay Chateau's costs in the sum of $14,292.34.
As the parties were content to have the application dealt with on the papers and Mr Zepinic has not filed any response to Chateau's application for indemnity costs to be paid in the aggregate sum of $14,292.34, I would stay the operation of a costs order in this sum for 14 days to allow Mr Zepinic to make any application by letter addressed to the Registrar within 7 days of publication of these reasons as to why that order should not be made. If, in light of that letter, the Court is inclined to vary the order as to costs, the parties will be notified in writing and given an opportunity to make any further submissions.
WHITE JA: I agree with Bell P.

Amendments 17 November 2020 - Amendments made to the coversheet orders as follows:

In order 3 - "Order 3 to be stayed for 14 days" has been changed to "Order 2 to be stayed for 14 days". In order 5 - "If Mr Zepinic applies ... to vary order 3 as provided for ..." has been changed to "If Mr Zepinic applies ... to vary order 2 as provided for ..." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2020

Vexatious Proceedings Act 2008(NSW)ss 4, 8, 13, 14, 16

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. By a Notice of Motion filed on 17 February 2020, Mr Zepinic sought leave under s 14(2) of the Act to commence proceedings to set aside Pembroke J's order and to set aside two writs of levy of property. That motion was dismissed by Stevenson J on 19 March 2020 with a specified gross sum costs order made against Mr Zepinic five days later. On 23 March 2020, during the brief period between the dismissal of the motion and the costs order, Mr Zepinic filed a Notice of Motion (the 23 March 2020 Motion) seeking to set aside Stevenson J's dismissal order in addition to Pembroke J's vexatious proceedings order. This motion was heard by Lindsay J (the primary judge). Mr Zepinic did not seek leave to file the 23 March 2020 Motion. Consequently, the Motion was stayed and dismissed by the primary judge under s 13 of the Act. Mr Zepinic sought leave from this Court to appeal the primary judge's dismissal, again without leave under s 14(2) of the Act. The principal issue before this Court was whether Mr Zepinic's application for leave to appeal amounted to the institution of proceedings within the meaning of s 13(1) of the Vexatious Proceedings Act 2008 (NSW). The Court held (Bell P, White JA agreeing), dismissing the application for leave to appeal and ordering Mr Zepinic to pay the respondent's (Chateau's) costs on an indemnity basis: 1. The application for leave to appeal amounted to the institution of proceedings within the meaning of the Act. The underlying proceedings were clearly those of the kind to which the vexatious proceedings order of 25 May 2017 related: [24], [30] (Bell P); [42] (White JA). 2. Mr Zepinic's application was vexatious, he failed to seek leave to institute the proceedings, and was warned by Chateau that costs would be sought on an indemnity basis. In these circumstances, it was plainly and entirely appropriate that Chateau should be awarded its costs on an indemnity basis: [32]-[34] (Bell P); [42] (White JA). Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801; Horseshoe Pastoral Co Pty Ltd v Murray Smith t/as South Coast Tile and Slate Co [1995] NSWCA 200, referred to.

Judgment

BELL P: The applicant, Mr Vito Zepinic (Mr Zepinic), seeks leave to appeal from orders made by Lindsay J (the primary judge) on 16 April 2020: Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 408. The primary judge declared that, pursuant to s 13(2) of the Vexatious Proceedings Act 2008 (NSW), the Notice of Motion filed by Mr Zepinic on 23 March 2020 (the 23 March 2020 Motion) be stayed until it was dismissed (or taken to be dismissed) under s 13 of that Act. The primary judge also ordered that the 23 March 2020 Motion be dismissed pursuant to s 13(4)(b) of that Act.
On 25 May 2017, in Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582, Pembroke J made orders under the Vexatious Proceedings Act to the effect that Mr Zepinic was prohibited from instituting proceedings in New South Wales relating to or arising out of the subject matters of various proceedings, including those before the primary judge, in which Mr Zepinic filed a Notice of Motion on 23 March 2020.
The definition of proceedings in the Vexatious Proceedings Act includes in s 4 any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal.
Pembroke J's decision was upheld by this Court on 14 December 2018: see Vito Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317.
Special leave to appeal to the High Court was dismissed on 16 October 2019: Zepinic v Chateau Constructions (Aust) Ltd [2019] HCASL 326.
In later proceedings which reached this Court, Zepinic v Chateau Constructions (Aust) Limited (No 2) [2019] NSWCA 187, Simpson AJA observed at [6] that: "The orders made by Pembroke J and upheld by this Court arose out of a protracted history of litigation between the parties which originated with a building contract entered into in 2006. Mr Zepinic was dissatisfied with the quality of the work performed. Thereafter, numerous proceedings were commenced by Vito, Milla and/or Nina Zepinic. It was those proceedings that prompted the respondent to apply for orders under the Vexatious Proceedings Act. The judgment of this Court involved scrutiny of the numerous proceedings commenced by one or other of the applicants, many (but not all) of which were found to have been vexatious for the purposes of s 8 of the Vexatious Proceedings Act."
As outlined by the primary judge at [3], the background to the 23 March 2020 Motion was as follows: "(a) By a Notice of Motion filed on 17 February 2020, Mr Zepinic sought leave under section 14(2) of the Vexatious Proceedings Act 2008 to commence proceedings to set aside Pembroke J's order and to have set aside two writs of levy of property. (b) On 19 March 2020 Stevenson J dismissed that motion for reasons published on that date as Chateau Constructions (Aust) Ltd v Zepinic [2020] NSWSC 266. (c) On 24 March 2020 his Honour made a specified gross sum costs order against Mr Zepinic (in favour of the respondent to the motion, Chateau Constructions (Aust) Ltd) for reasons set forth in unpublished reasons for judgment styled "Chateau Constructions (Aust) Ltd v Zepinic (No. 2), not published on Caselaw. (d) Mr Zepinic did not wait for Stevenson J's second judgment before seeking to have the first judgment set aside. On 23 March 2020 he filed the Notice of Motion presently before the Court. (e) The Notice of Motion filed on 23 March 2020 is primarily directed (against the respondent, Chateau Constructions (Aust) Ltd) to seeking an order that Stevenson J's dismissal order of 19 March 2020 be set aside and, incidentally, to seeking to set aside Pembroke J's order of 25 May 2017, as well as invoking or challenging other orders affecting him."

Zepinic v Chateau Constructions

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