Zepinic v Eventus Lawyers Pty Ltd t/as SLF Lawyers

Background

1. The plaintiff has a long history before the Court, much of which occurred prior to the relevant issues directly involved in these proceedings. The plaintiff's history has been detailed numerous times in various judgments of the Court. It is necessary, however, to summarise some background briefly to provide context to the present proceedings.
2. It is relevant to note that the plaintiff is unrepresented, for which the Court makes some allowance. But the Court must apply the law and take the pleadings and material as they exist and/or were adduced.

Plaintiff's involvement in previous proceedings

1. On 15 April 2004, the plaintiff and his wife purchased 34 Turramurra Avenue, Turramurra ("the Property"), and, on 22 February 2006, entered into a building contract with Chateau Constructions (Aust) Limited ("Chateau") to build a new dwelling on the property. [1]
2. Shortly thereafter, on the plaintiff's evidence, it appears that the plaintiff and his wife became dissatisfied with the works, alleging that Chateau had breached the building contract, and they refused to pay Chateau's fees. [2]
3. On 18 January 2007, Chateau commenced proceedings against the plaintiff and his wife in the Consumer, Trader and Tenancy Tribunal ("the CTTT") in respect of the unpaid fees. [3] On 22 September 2008, the CTTT found in favour of Chateau and dismissed a Cross-Claim that had been brought by the plaintiff and his wife. [4] This decision was the subject of unsuccessful applications for appeal by the plaintiff and his wife to the District Court and to the Court of Appeal. [5]
4. Chateau then commenced proceedings in the Supreme Court by way of Summons filed 22 September 2009. The Summons sought enforce a charge over the Property. [6]
5. On 8 April 2010, Slattery J ordered the sale of the Property, and appointed a trustee for the sale, being Mr Nicholas Malanos ("the Trustee"). [7] Following that judgment, there were attempts by the plaintiff to proceed on a Cross-Claim upon which it is unnecessary for me to expand in detail. [8]
6. As a consequence of the 8 April 2010 orders, there were two trusts created for the purpose of the sale of the Property by the Trustee. The plaintiff referred to them as the "Mr and Mrs Zepinic Trust" and "34 Turramurra Avenue Trust". The Property was sold by the Trustee at auction on 14 November 2014 for $3,005,000. [9]
7. The plaintiff has subsequently filed or attempted to file several further applications and proceedings against Chateau and the Trustee in respect of this sale and other matters arising from his prior disputes with Chateau. [10]

Vexatious litigant proceedings

1. On 5 September 2016, Pembroke J, on application of Chateau, dismissed proceedings which had been brought by the plaintiff against Chateau which sought to reagitate the issues between the parties on the new basis that the plaintiff's daughter Nina was in fact the proper owner of the Property. The Court found that the proceedings disclosed no reasonable cause of action.
2. His Honour invited Chateau to make an application for an order against the plaintiff, his wife and his daughter, pursuant to the Vexatious Proceedings Act 2008 (NSW). On 26 September 2016, Chateau filed a Notice of Motion for such orders against the plaintiff. [11]
3. On or about 15 March 2017, the plaintiff had a meeting with Ms Margaret Pavey, a Special Counsel employed by SLF, and engaged the defendant to provide legal services. [12] The extent of the plaintiff's instructions is disputed by the parties, but it is at least agreed that the plaintiff sought the defendant's advice and/or representation in respect of some aspects of the proceedings in respect of, or against, Chateau. [13]
4. On 27 March 2017, the plaintiff signed a Costs Agreement with SLF, the contents of which do not reveal the instructions provided by the plaintiff or specify the scope of work in a manner that assists the resolution of this dispute. [14] This Agreement gives rise to what has been described as the "March 2017 Retainer". It is at least agreed that some part of the instructions provided by the plaintiff to the defendant included seeking information regarding the Trustee's sale of the Property. [15]

Vexatious Orders

1. On 9 May 2017, Chateau's Motion of 26 September 2016 was heard by Justice Pembroke. Neither the plaintiff, nor any representative, appeared at that hearing - this is both clear in the judgment and was undisputed in evidence.
2. As a result, orders pursuant to the Vexatious Proceedings Act were then made by his Honour against the plaintiff, his wife, and his daughter ('the Vexatious Orders'): Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582. The orders were made on 25 May 2017.
3. The Vexatious Orders, as applicable to the plaintiff, are as follows: "[49] In proceedings No 2009/290598 I make the following orders: (1) Order pursuant to section 8(7)(a) of the Vexatious Proceedings Act 2008 that all proceedings in New South Wales instituted by Vitomir Zepinic and/or Milla Zepinic: (a) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/03657; (b) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/33225; (c) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2009/290598; (d) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2013/132492; (e) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2016/97515; (f) relating to or arising out of the construction contract entered into in or about February 2006 between Vitomir Zepinic and Milla Zepinic and Chateau Constructions (Aust) Limited; and/or (g) relating to the property known as 34 Turramurra Avenue, Turramurra, New South Wales, being the land comprised in folio A/348843, including, but not limited to, the sale of that property completed in or about December 2014, are stayed. (2) Order pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 that Vitomir Zepinic, also known as Vito Zepinic, is prohibited from instituting proceedings in New South Wales: (a) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/03657; (b) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/33225; (c) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2009/290598; (d) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2013/132492; (e) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2016/97515; (f) relating to or arising out of the construction contract entered into in or about February 2006 between Vitomir Zepinic and Milla Zepinic and Chateau Constructions (Aust) Limited; and/or (g) relating to the property known as 34 Turramurra Avenue, Turramurra, New South Wales, being the land comprised in folio A/348843, including, but not limited to, the sale of that property completed in or about December 2014. … [50] In proceedings No 2016/97515 I make the following orders: (1) Order pursuant to section 8(7)(a) of the Vexatious Proceedings Act 2008 that all proceedings in New South Wales instituted by Vitomir Zepinic and/or Nina Zepinic: (a) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/03657; (b) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/33225; (c) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2009/290598; (d) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2013/132492; (e) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2016/97515; (f) relating to or arising out of the construction contract entered into in or about February 2006 between Vitomir Zepinic and Milla Zepinic and Chateau Constructions (Aust) Limited; and/or (h) relating to the property known as 34 Turramurra Avenue, Turramurra, New South Wales, being the land comprised in folio A/348843, including, but not limited to, the sale of that property completed in or about December 2014, are stayed. (2) Order pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 that Vitomir Zepinic, also known as Vito Zepinic, is prohibited from instituting proceedings in New South Wales: (a) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/03657; (b) relating to or arising out of the subject matter of Consumer Trader and Tenancy Tribunal proceeding HB07/33225; (c) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2009/290598; (d) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2013/132492; (e) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2016/97515; (f) relating to or arising out of the construction contract entered into in or about February 2006 between Vitomir Zepinic and Milla Zepinic and Chateau Constructions (Aust) Limited; and/or (g) relating to the property known as 34 Turramurra Avenue, Turramurra, New South Wales, being the land comprised in folio A/348843, including, but not limited to, the sale of that property completed in or about December 2014."
4. It is undisputed that SLF did not appear on behalf of the plaintiff before the Court in respect of the Vexatious Orders.
5. The plaintiff subsequently appealed Pembroke J's judgment and appeared unrepresented before the Court of Appeal. On 14 December 2018, the Court of Appeal dismissed the appeal, affirming the Vexatious Orders: Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 (Simpson AJA, with whom McColl and Macfarlan JJA agreed).

Trustee instructions

1. Following the Vexatious Orders, SLF continued to provide legal services to the plaintiff. On 23 June 2017, a further Costs Agreement was signed by the plaintiff. This gave rise to that which has been described as the "June 2017 Retainer". [16]
2. In November 2017, SLF filed documents on behalf of the plaintiff seeking an account from the Trustee in respect of the sale of the Property that had taken place in 2014. [17] In March of 2018, Kunc J made orders requiring the Trustee to provide those documents. [18]
3. On 28 August 2018, SLF filed a Notice of Ceasing to Act as the legal representative of the plaintiff, with the leave of Kunc J. [19]
4. On 19 March 2020, the plaintiff was refused leave to commence further proceedings against the Trustee: Application of Vito Zepinic [2020] NSWSC 269.

Defamation proceedings

1. On 12 June 2017, an article was published by the Sydney Morning Herald ('SMH') over the by-line of Kate McClymont, which was entitled 'Vito Zepinic declared vexatious litigant after 17 failed legal actions' ("the SMH Article"). Relevantly, this article, which is in evidence, described Mr Zepinic as "once the security chief for convicted Bosnian war criminal Radovan Karadzic". [20]
2. On or about 11 July 2017, the plaintiff and Ms Pavey had a conference regarding a potential defamation claim in relation to the SMH Article. [21] In April 2018, a further conference (and/or conferences) occurred between the plaintiff and Ms Pavey in respect of the potential defamation claim. [22]
3. On 27 April 2018, the plaintiff signed a further Costs Agreement with the defendant which did not include the scope of work or basis to which it related. [23] These are the circumstances which gave rise to what is described as the "April 2018 Retainer".
4. On or about 14 May 2018, Mr Littlemore KC provided SLF with advice regarding the prospects of the plaintiff's potential defamation claim against SMH for the SMH Article. [24] The advice is in evidence and conveys Mr Littlemore's view that there was no substantial merit in any action for defamation in respect of the SMH article.
5. No further action was taken in respect of the proposed defamation proceedings.

Local Court proceedings

1. On 8 August 2019, SLF filed a Statement of Claim in the Small Claims Division of the Local Court of NSW against the plaintiff seeking $16,084.25 in unpaid legal fees ("the Local Court proceedings"). [25]
2. It is relevant to note that Ms Pavey, who was one of the witnesses in these proceedings, and Mr Zepinic's primary contact at SLF, ceased working for SLF on 31 March 2019. She was not involved in the Local Court proceedings.
3. By his Defence in the Local Court, filed on 2 September 2019, the plaintiff alleged that SLF had failed to provide services in accordance with the March 2017 and June 2017 Retainers and alleged generally that SLF was guilty of professional misconduct. [26]
4. The Local Court issued judgment in favour of SLF on 2 March 2021 in the total sum of $19,710.01 (inclusive of costs and interest). [27]

Notice of Motion

1. It is necessary to recite, in full, the relief sought by the plaintiff in this Motion. It can be dealt with easily as it involves questions of law not fact.

Relief Sought in the Notice of Motion

1. I first recite the orders sought by Mr Zepinic, which were as follows: 1. Set aside judgment/orders delivered by the CTTT on 15 April 2009 (Chateau Constructions (Aust) Limited v Vito & Milla Zepinic). 2. Invalidate Notice of Motion filed in the Supreme Court of New South Wales by Chateau Constructions (Aust) Limited against Milla Zepinic & Vito Zepinic of 13 March 2013 (2009/290598). 3. Invalidate Notice of Motion filed in the District Court of New South Wales by Chateau Constructions (Aust) Limited against Milla Zepinic & Vito Zepinic of 19 March 2013 (2009/335054). 4. Set aside judgment/orders delivered by the Supreme Court of New South Wales on 13 September 2013 (Chateau Constructions (Aust) Limited v Vito Zepinic; case no: 2009/290598). 5. Set aside judgment/orders delivered by the Supreme Court of New South Wales on 11 August 2014 (Chateau Constructions (Aust) Limited & Nicholas Craig Malanos v Milla Zepinic & Vito Zepinic; case no: 2009/290598). 6. Invalidate "Contract for the Sale of Land - 2005 edition" signed between Nicholas Craig Malanos and Yin Ye on 15 November 2014 related to the sale of property at 34 Turramurra Avenue, Turramurra NSW 2074. 7. An order pursuant to s 138(3) of the Real Property Act 1900 (NSW) that the NSW Registrar General issue a new certificate of title in respect of the land comprised in folia A/348843 (property at 34 Turramurra Avenue, Turramurra NSW 2074) describing Vito Zepinic in the first schedule. 8. Invalidate invoice no: 10530251 of $2,151 issues on 16 November 2016 from the Supreme Court of New South Wales to Nina Zepinic & Vito Zepinic as fees for the hearing of case 2016/97515 Nina Zepinic v Chateau Contructions (Aust) Limited. 9. Invalidate judgments delivered by the Supreme Court of New South Wales on 25 May 2017 in Nina Zepenic & Vito Zepenic v Chateau Contructions (Aust) Limited 2016/97515 and Chateau Contructions (Aust) Limited Milla Zepenic 2009/290598. 10. An order to Worrells Solvency and Forensic Accountants in Sydney to provide Vito Zepenic or the Supreme Court of New South Wales on or before 10 January 2023 the following: 1. All documents on which they had created and registered the Mr & Mrs Zepinic Trust; 2. Full address and contact details of trustee(s) and beneficiaries for the Mr & Mrs Zepinic Trust; 3. All financial documents (evidences) [sic] related to the Mr & Mrs Zepinic Trust (ATO Tax Returns, deposits, the bank statements, incomes, debits, interests, etc) since the Trust was created until date of the Court judgment/orders. 1. An order to Worrells Solvency and Forensic Accountants in Sydney to provide to Vito Zepenic or the Supreme Court of New South Wales on or before 10 January 2023 the following: 1. All documents on which they had created and registered the 34 Turramurra Avenue Trust; 2. Full address and contact details of trustee(s) and beneficiaries for the 34 Turramurra Avenue Trust; 3. All financial documents (evidences) [sic] related to the 34 Turramurra Avenue Trust (ATO Tax Returns, deposits, the bank statements, incomes, debits, interests, etc) since the Trust was created until date of the Court judgment/orders. 1. An order to SLF to re-pay the plaintiff the amount he paid to them including payment he made to Mr Ahmed Shahan, a barrister. 2. An order to SLF to pay to the plaintiff damages caused by negligence in the matter of Vito Zepinic v Defamation [sic] in accordance with the proposed out-of-court settlement with Fairfax. 3. An order that SLF pay to the plaintiff other damages and losses which the Court sees fit. 4. An order that SLF pay the plaintiffs costs and disbursements on the indemnity basis.

Prayers 12 to 15

1. The Motion was not accompanied by an Affidavit in support. Nor was it the subject of any separate submissions by Mr Zepinic. Rather, Mr Zepinic advanced the Motion as a vehicle to seek further primary relief from the Court in addition to the relief sought in the Statement of Claim. He relies on the same evidence and submissions in support of both the Summons and the Motion. This is particularly apparent in respect of the relief sought in prayers 12 to 15 (both inclusive) of the Motion.
2. To the extent that the relief in prayers 12, 13, 14, and 15 is sought by way of Motion, they are dismissed. In my view it is more appropriate to deal with those claims in the context of the plaintiff's Statement of Claim, a matter which I have canvassed later in these reasons.

Prayers 1 to 9

1. It is clear that most of the relief sought in the Motion relates to the matters which are the subject of the Vexatious Orders (made by Pembroke J and affirmed by the Court of Appeal).
2. This, on SLF's submission, is an impermissible attempt to re-litigate the issues which the plaintiff is barred from pursuing, both by reason of the Vexatious Orders and also by res judicata and estoppel. There is force in that submission.
3. Prayers 1 to 9 of the Motion lie squarely within the ambit of the Vexatious Orders made by Pembroke J. On that basis alone those parts of the Motion should be dismissed by the Court, pursuant to s 13 of the Vexatious Proceedings Act. Further, I am also satisfied that those prayers relate to matters which have been conclusively and finally determined already in this Court (including the Court of Appeal) and courts below.
4. The comments of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665 at 668 (which was cited with approval by the High Court in Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 and Rogers v The Queen (1994) 181 CLR 251 at 287-288; [1994] HCA 42) seem apt: "… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again … there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure …."
5. In addition to the inherent problems with prayers 1 to 9 of the Motion as I have just outlined, prayers 2, 4, and 5 also raise an additional jurisdictional issue with which the Court must grapple.
6. The Supreme Court's power to set aside a final judgment determining the rights of parties is limited. Generally, courts do not set aside interlocutory orders if the application for such an order amounts to an appeal against the original decision or a re-agitation of the same issues without any alteration in the facts.
7. It is against that principle of finality that the relief sought in prayers 2, 4, and 5 of the Motion must be assessed. Prayer 2 seeks that the Court, as presently constituted, "invalidate" a "Notice of Motion", which was determined against the plaintiff by Robb J on 5 July 2013 in the Supreme Court proceedings commenced by Chateau, whereas prayers 4 and 5 seek that the Court set aside judgments issued by the Court in those proceedings on other dates.
8. In my view, the relief sought in prayers 2, 4, and 5 of the Motion amount to an attempt to appeal against the original decisions or to re-agitate the same issues. It is highly inappropriate to attempt to do so by way of a Motion in a different proceeding which involves different parties, particularly given the exhaustive appeals proceedings which have already been initiated by the plaintiff against Chateau and subsequently dismissed, and the availability of proper avenues of appeal. Judgments of a superior court of record are not amenable to collateral attack and the bringing of fresh proceedings before the Court does not provide another opportunity to re-litigate issues already conclusively determined.
9. Accordingly, prayers 1 to 9 of the Motion are dismissed.

Prayers 10 and 11

1. Prayers 10 and 11 seek that Worrells Solvency and Forensic Accountants ("Worrells") in Sydney produce documents to the plaintiff relevant to the trusts created for the purpose of the sale of the Turramurra property.
2. Worrells is not a party to this proceedings, nor was it named as a respondent to the plaintiff's Motion. Accordingly, the plaintiff has not complied with r 18.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) by moving on a Motion that had not been served upon each person affected by the proposed order.
3. It does not appear that the plaintiff has issued Worrells with any Subpoena to Produce or other such request for these documents in these proceedings. Furthermore, if a Subpoena had issued against Worrells, there is not a reasonable forensic purpose in these proceedings for the production of the documents, such that the making of the order would be appropriate. Expressed otherwise, the documents have no adjectival relevance to these proceedings.
4. There are at least two reasons for that conclusion. First, the plaintiff sought for the documents to be produced after the conclusion of the hearing in these proceedings. Secondly, in the month prior to the filing of the Notice of Motion, the plaintiff had been engaged in separate litigation in this Court involving Worrells. The earlier proceeding had been dismissed by Justice Button on 10 August 2022 on the grounds that it was an abuse of process and vexatious: Dr Vito Zepinic v Worrells Solvency & Forensic Accountants [2022] NSWSC 732. These documents, while, arguably, relevant to those dismissed proceedings, are being sought, it is clear, for an ulterior purpose and are an abuse of process.
5. On those bases alone, prayers 10 and 11 of the Motion have been sought in these proceedings as a method of continuing a dispute or litigation against Worrells, in spite of the order for dismissal made by Justice Button.
6. I am satisfied that the relief sought in those prayers should not be granted, and prayers 10 and 11 of the Motion are dismissed.

Determination of Motion

1. I have determined that the orders sought in each prayer of the Motion ought not be granted and accordingly that the Motion itself should be dismissed.
2. Upon review of prior judgments of this Court, relating to various proceedings brought by the plaintiff, it appears that the plaintiff has sought relief which is either the same or substantially the same as that which is sought in this Motion on several other occasions. I refer, without seeking to be exhaustive, to the Motion dismissed by Pembroke J on 5 September 2016: Zepinic v Chateau Constructions (Aust) Limited [2016] NSWSC 1254 at [3] and [25]; a Summons dismissed by Kunc J in his judgment of 19 March 2020: Application of Vito Zepinic [2020] NSWSC 269 at [71] to [72]; a Motion dismissed by Lindsay J on 16 April 2020: Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 408; and a further Motion also determined by Kunc J in a judgment of 3 June 2020: Application of Vito Zepinic (No 2) [2020] NSWSC 693.

Claim for Professional Negligence

1. The plaintiff's substantive claim, as mentioned above, is that of professional negligence, alleging that SLF breached the Retainers of March 2017 (and June 2017) and April 2018.

Evidence and Submissions

1. The issues that require determination can broadly be characterised by the following three questions: 1. whether SLF acted without due care in relation to, or otherwise than in accordance with, the March 2017 and/or June 2017 Retainers, with respect to the application for the Vexatious Orders or action to be taken in respect of the Trustee; 2. whether SLF lacked due care in relation to the April 2018 Retainer with respect to advice sought regarding commencing Defamation Proceedings; and 3. whether the Court has the power on this application to set aside the order of the Local Court.

Findings on Credit

1. This is a matter where there is a significant factual dispute between the parties. As a result, it is necessary for me to set out briefly my findings on credibility and my impression of the witnesses prior to addressing the body of evidence before the Court.
2. The plaintiff gave evidence by Affidavit, which was tested under cross-examination. He did not call any other witnesses. His evidence was unconvincing.
3. The plaintiff struggled to provide direct answers to questions. As the plaintiff is a person for whom English is not a first language, this on its own would not necessarily indicate that his evidence was not truthful.
4. My difficulty in accepting the plaintiff's evidence arose from the digressive, disjointed, and at times plainly contradictory evidence that he gave, which impacted almost every aspect of his testimony.
5. Given that the plaintiff did not have the assistance of a legal representative and, as I have already noted, is not a native speaker of English, in my view he must be afforded some latitude in any critical analysis of his presentation in the witness box. Despite this, I am still of the opinion that the plaintiff's evidence was unreliable. The level of inconsistency and prevarication that he displayed points to the conclusion that he had an extremely poor and selective recollection of key events.
6. It seemed to me that the plaintiff, perhaps understandably, felt aggrieved at the perceived injustice in the treatment by Chateau, and everything else was interpreted through that prism. Needless to say, I have approached the plaintiff's evidence with particular caution and for the most part, have given preference to contemporaneous documents and objectively verifiable facts.
7. SLF called evidence from solicitors Margaret Pavey and Angela Smith. Their evidence was also given primarily in Affidavit form and tested by the plaintiff under cross-examination.
8. Ms Pavey was the plaintiff's primary point of contact at SLF throughout 2017 and 2018 and was responsible for the day-to-day carriage of the work arising from the Retainers. Ms Pavey gave evidence in a frank way. I found her evidence to be reliable and truthful as it was, for the most part, supported by detailed contemporaneous file notes and communications. I accept her evidence.
9. Ms Smith is, and was at all material times, a partner at SLF. She had some dealings with the plaintiff in that capacity, including instituting the Local Court proceedings to recover SLF's legal costs from him in 2019. Her oral evidence was relatively brief. She did not recall every aspect of her dealings with the plaintiff but that is unsurprising given that some years had passed by the time she was giving evidence at the trial. I found Ms Smith to be a reasonable and fair witness and I accept her evidence.

March 2017 Retainer

1. There are a number of aspects on which Mr Zepinic has based his claim in negligence in respect of the March 2017 Retainer. The first - upon which Mr Zepinic focussed most of his submissions and evidence - is the failure of the defendant to represent him in the vexatious litigant proceedings.
2. The second is that the defendant, despite the plaintiff's express instructions, failed to institute court proceedings against the Trustee, Mr Melanos. By extension, the plaintiff appears to blame the defendant for not being able to rectify what he calls the "illegal" actions of Mr Melanos in respect of the sale of the Property and the conduct of the two trusts.

Vexatious proceedings

1. Mr Zepinic's submission is that SLF never registered themselves as his lawyers in the vexatious proceedings. [28] The defendant accepts that allegation but disputes that SLF were ever instructed by the plaintiff to act in those proceedings.
2. The plaintiff gave evidence that in or around March or April 2017, he communicated with Ms Pavey in relation to the pending application for Vexatious Orders and provided her a copy of Chateau's Notice of Motion. [29]
3. As noted above, the parties are in agreement that on or about 15 March 2017, the plaintiff had a meeting with Ms Pavey and engaged the defendant to provide legal services. [30] It is not in dispute that at that meeting the plaintiff told Ms Pavey about his numerous legal disputes with Chateau. He also told her that the Property had been sold in 2014. He also wanted to understand what became of the proceeds of sale of the Property by the Trustee. [31]
4. Ms Pavey gave evidence that she told the plaintiff that she would review the judgments arising from the disputes with Chateau and meet him the following week to discuss the matter further. [32] Ms Pavey's evidence was that the plaintiff did not tell her at that meeting that there was a pending application before the Court for him to be declared a vexatious litigant. [33] Ms Pavey's contemporaneous file note, which is in evidence, is consistent with her recollection. [34]
5. Ms Pavey also said that by the time of the second meeting, she had formed the view that the Chateau proceedings were concluded and that it would not be possible to take further steps in relation to them, given that special leave had been refused by the High Court. [35]
6. The second meeting between the plaintiff and Ms Pavey took place on 24 March 2017. [36] Ms Pavey gave evidence that at that meeting, she told the plaintiff that there was nothing more she could do about the proceedings involving Chateau or the sale of the Property. [37] She testified that when the plaintiff angrily responded that she must do something, she proposed that she contact the Trustee to obtain an account of the proceeds of sale. [38] Ms Pavey's recollection was that the plaintiff agreed to this course. Again, Ms Pavey produced a contemporaneous file note which supported her evidence. [39]
7. The plaintiff's evidence was that Ms Pavey did not tell him that that there was nothing she could do to re-agitate the proceedings with Chateau. [40]
8. The plaintiff submitted that the Retainer of 24 March 2017 was entered into on the mutual understanding that there was "a great basis for the proceedings against Chateau". [41] Mr Zepinic further submitted that he only engaged the services of SLF on the understanding that they would be instituting proceedings against Chateau and/or the Trustee. [42] He also said that on 24 March 2017 he had provided Ms Pavey with, and drawn her attention to, the application for the Vexatious Orders that had been filed by Chateau. [43]
9. Ms Pavey denied that that the plaintiff had made her aware of that application. [44] She gave evidence that she first became aware of the application for Vexatious Orders on 9 May 2017, when she received a telephone call from the solicitor for Chateau, informing her that the matter had been in Court that day for submissions. The solicitor informed her that the plaintiff had said Ms Pavey was acting for him in relation to the application. Ms Pavey replied that she was not aware of the application and had not been instructed to appear. [45]
10. An email in evidence sent by Ms Pavey to the plaintiff on the afternoon of 9 May 2017 would seem to support this recollection. [46] Ms Pavey wrote: "Vito, I just had a call from [the solicitor for Chateau]. Apparently there was an application today to have a vexatious litigant order made preventing you bringing any further litigation in these proceedings. As I have advised you on several occasions, I cannot help you in relation to litigation and in my opinion it has run its course. I am retained to assist you in obtaining an accounting for the proceeds of sale ...."
11. In cross-examination, the plaintiff seemed to agree that Ms Pavey could not have been aware of the hearing of the application for Vexatious Orders which was scheduled to take place on 9 May 2017, as he himself was not aware that a hearing was due to proceed on that day. [47]
12. There are some further contemporaneous documents in evidence which support Ms Pavey's evidence on this issue. Without seeking to be exhaustive, an email from the solicitor for Chateau to the plaintiff dated 13 June 2017, [48] which is before the Court, stated: "…I have had one conversation with Ms Pavey. She confirmed that she was only acting for you in respect of the sale proceeds …. Ms Pavey told me on at least four separate occasions during our telephone conversation that she was not acting for you, and would not act for you, in respect of the [Chateau proceedings and Vexatious Litigant proceedings]."
13. Ms Pavey gave further evidence about discussions that she had with the plaintiff following the making of the Vexatious Orders. She said that on 2 June 2017, the plaintiff informed her that he would be appealing the orders of Pembroke J. When she asked if he wanted advice about that, she said that the plaintiff responded telling her to "keep [her] nose out of it". [49]
14. In contrast to this, the plaintiff submitted that on 2 June 2017 a strategic decision was made to appeal against the Vexatious Orders. [50] He further submitted that he only went on to file that appeal without representation on 21 August 2017 because SLF had failed to prepare it for him in time. [51]
15. Ms Pavey also gave evidence that on 20 September 2017 she was present at a meeting with the plaintiff and Mr Shahan Ahmed of Counsel, who had been retained to act in relation to the application to have the Trustee provide an account for the sale of the Property. Ms Pavey said that Mr Ahmed asked the plaintiff if he wished for him and Ms Pavey to take over the conduct of the appeal of the Vexatious Orders, and that the plaintiff said that he did not. [52]

Failure to bring proceedings against the Trustee/Chateau

1. The other alleged breach of the March 2017 Retainer advanced by the plaintiff was that SLF failed to institute legal proceedings against the Trustee or Chateau on his behalf.
2. It does not seem to be in dispute that by approximately August 2017, SLF had attempted to engage with the Trustee to obtain an account of the sale of the Property but had not been successful. [53]
3. The material before the Court evidences that on 22 November 2017, SLF filed a Notice of Motion in the Court seeking leave pursuant to the Vexatious Proceedings Act to serve a Summons upon the Trustee seeking an account for the proceeds of the sale. Leave was granted to serve that application. [54]
4. In February 2018, the Trustee paid the balance of the proceeds of the Sale, some $221,149.19 into Court. [55] On 27 March 2018, orders were made by Kunc J requiring the Trustee to produce documents to the plaintiff. [56]
5. In May of 2018, SLF and the plaintiff discussed the proceedings on foot involving the Trustee. [57] Ms Pavey's file note, which is in evidence, discloses that the plaintiff remained preoccupied with seeking a review of orders and judgments generated in the various proceedings involving Chateau. Ms Pavey's oral and documentary evidence was that her advice remained that it was inappropriate and impossible to reagitate those matters in the course of the proposed application. [58]
6. Further, Ms Pavey's evidence was that on 31 July 2018, the plaintiff instructed her to file a Summons in the Supreme Court seeking appointment of an independent referee to review the conduct of the Trustee. [59] On the same day, Ms Pavey said that the plaintiff filed a separate application with the Court without consulting her first. [60] When this was discussed, Ms Pavey said that the plaintiff confirmed that it was his intention to rely on both applications. [61]
7. Ms Pavey gave evidence that as Mr Zepenic would not withdraw reliance on the application that he had filed, she sought advice from the Law Society Ethics Committee, and decided that SLF Lawyers should cease acting for Mr Zepinic. [62]
8. On 28 August 2018, Kunc J granted leave for a Notice of Ceasing to Act to be filed. [63]

April 2018 Retainer and alleged breach

1. The parties agree that on 11 July 2017, the plaintiff and Ms Pavey met to discuss the SMH article. [64] Ms Pavey gave evidence that during the course of that meeting, she went through the allegations in the article and that the plaintiff told her that they were true. Ms Pavey said that the plaintiff was of the view that the article was naming him as a war criminal, but that she disagreed. [65]
2. The purported defamation was nuanced. The statements in the article were true, but Mr Zepinic resigned from his position as soon as he learnt of the war crimes. Indeed, he gave evidence against the accused in the war crimes hearing.
3. A further meeting took place in April of 2018. [66] Ms Pavey's evidence was that the plaintiff wished to revisit the issue of the SMH article. She says that he proposed briefing Mr Stuart Littlemore KC to advise on the prospects of a defamation action in relation to the article. Her recollection was that the plaintiff told Ms Pavey that he had previously consulted Mr Littlemore in 2010. [67]
4. Ms Pavey said that she had reservations about the prospects of the defamation action, which she expressed to the plaintiff, but that she agreed to brief Mr Littlemore to see whether there was a reasonable cause of action. [68]
5. A brief was sent to Mr Littlemore in April 2018. [69] By way of Memorandum of Advice, dated 14 May 2018, Mr Littlemore advised that there were no good prospects of success in any action relating to the SMH article. [70] The Advice is in evidence.
6. Ms Pavey sent an email to the plaintiff with a copy of that Advice. [71] The plaintiff responded to that email in terms which, in my view, acknowledged that there would be no action able to be taken. [72]
7. Ms Pavey's evidence was that there were no further instructions from the plaintiff to take any action in relation to the SMH article, and that her view was that there were no reasonable prospects so to do. [73]
8. The plaintiff's evidence and submissions on the issue of the breach of the April 2018 Retainer was, at times hard to follow. The kernel of his grievance appeared to be that he was never provided with a copy of the brief that Mr Littlemore was given by SLF. [74] He categorically rejected that Mr Littlemore's Advice was sound, claiming that if Mr Littlemore had been given the "right" brief he would never be able to come to that conclusion. [75]
9. Despite this contention, the plaintiff did not articulate that which Mr Littlemore should have been provided but was not. He seemed to suggest that Mr Littlemore had not been given "the documents from publication of Sydney Morning Herald and The Age, making - made in that I am war criminal". [76]
10. A copy of the brief sent to Mr Littlemore was annexed to an Affidavit sworn by Ms Pavey and admitted into evidence. [77] That brief included copies of a number of articles relating to the plaintiff and published by various news outlets.
11. The plaintiff also gave evidence that SLF did not return the folder that he provided to SLF which included the allegedly defamatory material. [78] The plaintiff submitted that without the material in that folder, he was unable to brief someone else to pursue the defamation claim within the relevant limitation period. [79]
12. Nevertheless, it cannot be negligent for SLF to seek and obtain expert advice from senior counsel and to act in accordance with it. Further, no attempt was made to prove that SLF owed a duty to provide the file or the brief prior to it being sent to Littlemore KC or at the later time. Nor was it negligent not so to do.
13. In a letter to the solicitors for SLF that was tendered in evidence, the plaintiff asserted that he had requested the return of the documents in "numerous emails and letters" in 2019 and 2020. [80]
14. The plaintiff tendered emails dated 23 November 2019, 24 November 2019, and 3 December 2019, and a letter dated 12 December 2019 that he had sent to SLF in the context of a discussion about proposed settlement of the Local Court proceedings. [81] In those emails, the plaintiff requested that SLF prepare his folder of defamation material so that he could "overtake" it.
15. The emails from SLF contained in those communications indicate that SLF was holding the files pursuant to a lien for unpaid legal costs. It is otherwise stated in material before the Court that SLF had returned the particular folder of materials to the plaintiff in or around March 2019, [82] but there is insufficient evidence for me to make a particular finding about that and ultimately little turns on the issue.

Local Court proceedings

1. The plaintiff's third prayer for relief in his Statement of Claim was to set aside the judgment awarded to SLF in the Local Court proceedings.
2. In support of this claim the plaintiff asserted that SLF did not comply with s 194 of the Legal Professional Uniform Law 2014 (NSW), in that it filed the Local Court Statement of Claim on 8 August 2019, before the required 30 days had lapsed after the issuance of a seven-day letter of demand which was sent to the plaintiff on 25 July 2019. [83]
3. The plaintiff put this proposition to Ms Smith in cross-examination. She indicated that while the final letter of demand had indeed been sent on 25 July 2019, the invoices themselves had originally been rendered prior to that date. [84]

Duty of Care

1. Clearly, a solicitor owes a duty of care to their client, and, in part at least, the duty is founded upon the contractual retainer between them. It is a fiduciary relationship. There is a concurrent duty to the client that is owed in both tort and contract: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6.
2. SLF did not seek to deny that it owed a duty of care to the plaintiff. The key issue in these proceedings was whether SLF had acted negligently so as to breach that duty.

Scope of Duty & Retainers

1. The question of whether a legal practitioner has discharged the duty of care owed to their client will necessarily be informed by the terms and limits of the relevant retainer. [85] As stated by Oliver J in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a Firm) [1979] Ch 384 at 403: "Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do."
2. As I have already made clear, the ambit of each of the Retainers entered into between SLF and the plaintiff were disputed. The documents evidencing the Retainers generated by SLF were pro-forma costs disclosures and agreements, and therefore it falls to me to determine the scope of the Retainers and the work that SLF had been engaged to perform.

March and June 2017 Retainers

1. As the party alleging that SLF was engaged to act for him in the application for the Vexatious Orders, the plaintiff bears the burden of proving that the Retainers of March or June 2017 encompassed that work.
2. A considerable obstacle for the plaintiff is my hesitation in accepting his evidence, as outlined at [60] to [63] above. His contradictory evidence about whether he had told Ms Pavey about the upcoming hearing of the application for the Vexatious Orders (and whether he himself was indeed aware of that hearing) cannot be accepted. The plaintiff ultimately was unaware of the hearing and, in those circumstances, could not have informed Ms Pavey of that fact.
3. Furthermore, I found the plaintiff's version of events surrounding the March and June 2017 Retainers (as I have recounted above) to be inherently unrealistic. I do not accept that Ms Pavey would have entered into a retainer with the plaintiff on the basis that there was "a great basis to proceed against Chateau". It is plain that by March 2017 the plaintiff's avenues for pursuing further litigation against Chateau had expired. Further, the documentary evidence supports the contention of Ms Pavey that she had advised there was nothing further that could be done.
4. I also do not accept that the plaintiff told Ms Pavey about the application for the Vexatious Orders prior to 9 May 2017 or that he instructed SLF to act for him in respect of that application. In making that finding, I have considered the following evidence: 1. The contemporaneous evidence of communications between the plaintiff and Ms Pavey (in emails and Ms Pavey's file notes of meetings) prior to 9 May 2017 do not make any reference to the application for the Vexatious Orders; 2. Ms Pavey's email to the plaintiff on 9 May 2017 is completely consistent with her evidence that she was only made aware of the application for the Vexatious Orders when the solicitor for Chateau called her that day; [86] and 3. The email from the solicitor for Chateau to the plaintiff of 13 June 2017 supports Ms Pavey's evidence that she had told the solicitor that she was not instructed to act in relation to the Vexatious Orders application. [87]
5. I accept the evidence of Ms Pavey that SLF's instructions in respect of the March and June 2017 Retainers were limited to investigating the sale of the Property by the Trustee and obtaining an account of the proceeds of sale.

April 2018 Retainer

1. The scope of the April 2018 Retainer is less contentious. The parties agree that SLF was instructed to review the SMH article to advise on a potential action for defamation. In oral evidence, the plaintiff disputed that he had instructed SLF to obtain advice from Mr Littlemore in that regard, [88] but subsequently resiled from that position when cross-examined on emails that he had sent in 2018 which contradicted the assertion. [89]
2. I accept that the ambit of the April 2018 Retainer was to investigate the prospects of a defamation claim in relation to the SMH article, including by obtaining an Advice from Mr Littlemore.

Breach of Duty & Retainers

1. The question of whether SLF breached its duty of care towards the plaintiff necessarily involves the application of the Civil Liability Act 2002 (NSW) ('CLA') which must be informed by the scope of the Retainers which I have just outlined.
2. As I have remarked in the past, s 5B of the CLA determines what is not negligent, rather than what is negligent. [90] It involves the consideration of whether in all of the circumstances a defendant should have taken precautions against a foreseeable and not insignificant risk of harm.
3. In this case, the allegations are such that s 5B of the CLA would not exculpate the defendant from liability if the plaintiff's allegations as to the terms of the Retainers and the scopes of work were accepted.
4. It is for the Court to determine whether SLF breached the terms of its Retainers with the plaintiff, and whether it was negligent.

March and June 2017 Retainers

1. Given the findings I have made about the scope of the March and June 2017 Retainers, a significant portion of the plaintiff's allegations of breach fall away. These are primarily the plaintiff's allegations that SLF failed to appear for him at the hearing of the application for Vexatious Orders, or that SLF failed to reopen, reagitate, or otherwise re-engage with other proceedings involving Chateau. I have accepted Ms Pavey's evidence that SLF was not retained to perform these tasks.
2. The plaintiff's other criticism about the performance of these Retainers was that SLF failed to institute proceedings against the Trustee in relation to the sale of the Property. This allegation is not borne out on the evidence.
3. SLF had taken several steps to engage with the Trustee including obtaining an order for the Trustee to disclose documents relating to the sale to the Plaintiff. The Trustee then paid the balance of the sale proceeds into Court. SLF was further in the process of applying for an order appointing an independent referee to review the Trustee's conduct when the plaintiff filed his own application which placed SLF in a position of conflict.
4. I have no doubt that had it not been for the plaintiff filing his own conflicting application, and refusing to desist from that application, SLF would have continued to perform the work. I therefore find that SLF performed the March and June 2017 Retainers to the extent that it was able.

April 2018 Retainer

1. Commensurate with my findings at [120] of these reasons, the scope of the April 2018 Retainer was limited to SLF investigating the prospects of a defamation claim in relation to the SMH article, including by obtaining an Advice from Mr Littlemore. It is not disputed that SLF took these actions, and so prima facie there has not been a breach of the April 2018 Retainer.
2. Again, my findings in relation to the scope of the Retainer mean that many of the specific allegations of breach propounded by the plaintiff do not sound in negligence. While the plaintiff and the defendant agree that SLF did not institute any defamation proceedings against SMH, I am unable to find that this constituted a breach of SLF's Retainer.
3. There is much force in the proposition that were SLF to have commenced defamation proceedings against SMH after receipt of Mr Littlemore's advice, Ms Pavey could have been in breach of her professional obligations. It is a requirement of cl 2 of Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) that a law practice must not provide legal services on a claim unless a legal practitioner reasonably believes that there are reasonable prospects of success.
4. Ms Pavey's evidence was to the effect that she did not consider that there were reasonable prospects of a defamation claim in relation to the SMH article, and that this view was galvanised by the concurring Advice of Mr Littlemore. In my view, such a conclusion was wholly reasonable in the circumstances, given Mr Littlemore's vast and renowned expertise in the area of defamation.
5. Irrespective of the above, these matters are largely theoretical in light of the contemporaneous evidence. An email sent by the plaintiff to Ms Pavey on 14 May 2018, [91] following receipt of Mr Littlemore's Advice, simply stated: "Regarding observation by Mr Littlemore, I do not know what to say but looks to give up regarding procedure against SMH." [sic]
6. The overwhelming evidence is that the plaintiff did not instruct SLF to institute defamation proceedings, and that SLF would be unlikely to accept such instructions even if they had been given. I do not find that the failure to initiate such proceedings amounted to a breach of the April 2018 Retainer.
7. Finally, the plaintiff's secondary complaint arising from the April 2018 Retainer was the alleged failure of SLF to return his folder of materials so that he could instruct different lawyers to pursue that matter prior to the expiration of the one-year limitation period. I am not satisfied that this allegation is made out.
8. The SMH article was published on 12 June 2017, and the one-year limitation period for a defamation action in relation to it expired on 12 June 2018. It is worth noting that the plaintiff provided copies of further articles published by SMH relating to the same subject matter, the latest being dated 18 October 2018. On the most generous assessment, the latest possible expiry of limitation would be 18 November 2019.
9. The evidence tendered to support the plaintiff's requests for the return of his materials, as I have outlined at [104] to [106] above, only date from 28 November 2019 onwards, which was after the expiry of the latest possible limitation date.
10. Accordingly, I do not find that there were any requests by the plaintiff for the return of any materials prior to 18 November 2019, and it is unnecessary for me to consider if there were a breach of duty by SLF on that basis.

Conclusion on Breach of Duty

1. As is apparent from the foregoing, I find that SLF did not act in breach of the Retainers that were entered into in March 2017, June 2017, or April 2018. I also find that the plaintiff has not proved that SLF acted negligently in the provision of legal services to him.

Causation

1. Despite my finding that SLF did not act negligently, it is necessary to say something about causation in a case such as this. If the plaintiff had proved that SLF acted negligently, he would have been required by s 5D(1)(a) of the CLA to prove that the negligence of SLF was a necessary condition of the harm that he claims to have suffered. He would also have needed to prove harm or damage.

Vexatious Proceedings

1. First, a significant aspect of the plaintiff's claim seems to be predicated on the assumption that if SLF had appeared for him at the application for the Vexatious Orders or the appeal in relation to the Vexatious Orders, those orders would either have not been made, or set aside. The plaintiff did not serve any evidence going to this issue, nor did he expand upon it meaningfully in the course of submissions. He seemed to intertwine the issue with repeated assertions that the Vexatious Orders were granted fraudulently or on an improper basis. [92]
2. As I have outlined in these reasons, the Vexatious Orders have been upheld on Appeal: Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317. In that judgment, McColl, Macfarlan JJA and Simpson AJA comprehensively reviewed the procedural history relating to the Vexatious Orders made by Pembroke J and found that the plaintiff had instituted at least 12 proceedings which were vexatious within the meaning of the Vexatious Proceedings Act. The Court found that the orders were entirely justified. [93]
3. At the time of the plaintiff's first meeting with SLF in March of 2017, he had conducted and concluded the 12 vexatious proceedings. It seems to me that the Vexatious Orders were granted and upheld due to the overwhelming evidence that those 12 proceedings were vexatious, and not because of some other legal technicality that a shrewd representative may have been able to deflect.
4. Without seeking to make light of the value of proper legal representation, to establish causation the plaintiff had to demonstrate how having a legal representative being present would have had a material impact on the outcome of the proceedings. He has not done so.
5. It is also worth mentioning that since the Vexatious Orders were upheld on appeal, the plaintiff has continued his attempts to relitigate the matters that are the subject of those orders. Such attempts have attracted further findings of vexatiousness. [94] This indicates to me that far from being related to any action or inaction of SLF, the plaintiff finds himself the subject of the Vexatious Orders is wholly attributable to his own determination to institute vexatious proceedings, which he continues to demonstrate.

Defamation

1. I am also unable to find that causation would have been established in relation to the plaintiff's proposed defamation action against SMH.
2. As earlier stated, Littlemore KC is a well-known expert in defamation law. There is in evidence a copy of a written Advice on the poor prospects of such a defamation claim which was prepared by Mr Littlemore. The plaintiff did not otherwise serve any evidence going to the viability of the defamation claim, other than asserting that he had spoken to other unnamed and uncalled lawyers who assured him that the claim had good prospects. He did not identify those other lawyers, and I did not find that evidence to be credible or convincing.
3. Pursuant to s 5E of the CLA, the plaintiff bears the onus of proving, on the balance of probabilities, any fact in issue with respect to causation. It was incumbent upon the plaintiff to prove that if SLF had instituted the defamation proceeding, he would have been successful against SMH. He has not adduced any evidence going to this issue, and accordingly causation is not established.
4. The likelihood of success in either application (the Vexatious Orders Proceedings or the defamation proceedings) would be assessed on the basis of their uncertainty. [95] But evidence of some prospect of success needs to be available. There is none.

Damage

1. In a similar vein, it is necessary to provide some short comments on the evidence that the plaintiff put forward to support his claim for damages from SLF.
2. Prior to the hearing before me, the plaintiff filed a document styled as a "Summary of Losses and Damages". That document lists 12 instances of alleged loss and damage, 8 of which relate directly to the "loss of opportunity" to reagitate, challenge, or otherwise litigate further against Chateau and/or the Trustee. As I have already found, those claims are without merit given that those disputes have long since been concluded after exhaustive litigation.
3. The other heads of loss claimed by the plaintiff relate to the lost opportunity to resist the Vexatious Orders or prosecute the defamation claim, and also repayment of his legal costs. Commensurate with my reasons outlined at [142] and [143] above, the plaintiff has not proved that he had a realistic prospect of resisting the imposition of the Vexatious Orders. Accordingly, any lost opportunity in that regard does not sound in damages.
4. The plaintiff's claim for the repayment of legal costs was not founded on any clear basis. The gist of the claim seems to be that as a result of the plaintiff's dissatisfaction with the service provided by SLF, which has given rise to the proceedings before me, he is of the view that he should be refunded the monies that he paid to SLF for that service. Given my findings that SLF did not provide that service negligently and provided all services required in a professional manner, necessarily, any such claim must fail.
5. It was otherwise alleged by the plaintiff in his Statement of Claim that he was charged by SLF for the review of material relating to the potential defamation claim in July of 2017, despite there being no Cost Agreement in place at that time. The allegation was denied by SLF in its Defence. The plaintiff has not expanded upon the bald assertion in evidence or submissions, and I find that this allegation is not proved.

Jurisdiction to Set Aside

1. The final aspect of the plaintiff's claim was an application to set aside the judgment for unpaid costs obtained by SLF in the Small Claims Division of the Local Court. As I have already noted, SLF submitted that the Court, as presently constituted, is not vested with the jurisdiction so to do.
2. A party to proceedings before the Local Court sitting in its Small Claims Division has a right of appeal to the District Court pursuant to s 39(2) of the Local Court Act 2007 (NSW), with such a right limited to grounds of lack of jurisdiction or denial of procedural fairness only. The Local Court Act does not provide for a right of appeal from the Local Court sitting in its Small Claims Division to the Supreme Court.
3. Obviously, the Supreme Court has a broad inherent jurisdiction [96] which extends as much as is necessary for the administration of justice in New South Wales. [97] As such, the exercise of the inherent jurisdiction is limited by the requirements of the administration of justice. As stated by the High Court in Doyle v The Commonwealth (1985) 156 CLR 510 at 518; [1985] HCA 46: "…a judge cannot dispense with the requirements of the Rules of Court unless the Rules give him power to do so, and when a power is expressly conferred on the court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled."
4. I would not go as far as to say that this Court lacks the jurisdiction to set aside the Local Court's judgment generally. If the plaintiff had established that the Local Court lacked jurisdiction when issuing the judgment or that there was a lack of procedural fairness, it would be within the capacity of this Court to quash the judgment by way of a writ of certiorari. However, issues of the Local Court's jurisdiction or procedural fairness have not been raised or proved in this case. Instead, the plaintiff's submissions about the incorrectness of the Local Court's judgment were founded on propositions of fact (such as that he had already paid some of the costs awarded, or that SLF had commenced proceedings too early after sending its request for payment).
5. Overall, I do not consider that the plaintiff has established a basis upon which the Local Court's judgment should be set aside by the Court in these proceedings. It seems to me that the principle enunciated by Campbell JA in Zelden v Sewell [2011] NSWCA 56 at [22], referring to Cole JA's comments in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, is applicable here: "…where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute."
6. In coming to this conclusion, I am also mindful that the current proceedings have not been commenced as an appeal from the Local Court and are instead a fresh proceeding that has been instituted in this Court. I do not find that it would be appropriate for this Court to dispense with the requirement that appeals from the Small Claims Division are conducted in accordance with the Local Court Act 2007 (NSW) in this case, even if the Court were to have such jurisdiction. Moreover, even if certiorari were available, it should not be used in lieu of a right of appeal provided.

Estoppel/ Res Judicata Arising

1. The fact that plaintiff has not appealed the Local Court's Judgment to the District Court and has instead instituted these proceedings in this Court is also significant on the issue of whether estoppel or res judicata arises, and this was a matter the subject of submissions by SLF.
2. Res judicata (literally meaning "a matter decided") is the legal principle founded on the finality of legal proceedings. Res judicata is invoked to prevent a party from re-asserting a claim which has already been finally determined by the proper decision-maker. Similarly, issue estoppel is the principle that a matter established in previous proceedings as a step in reaching the ultimate determination cannot be challenged in a subsequent proceeding. [98]
3. In essence, SLF's submission is that the plaintiff has already unsuccessfully challenged the performance of the March and June 2017 Retainers in his Defence to the Local Court Proceedings, and therefore he should be barred from re-litigating those same claims before this Court. In support of that contention, SLF refers to s 38 of the Local Court Act which states that judgments and orders of the Local Court are final and binding.
4. Determinations of the Local Court in its Small Claims Division can give rise to issue estoppel. So much was confirmed in Charafeddine v Morgan (2014) 66 MVR 232; [2014] NSWCA 74, where Beazley P (with whom Macfarlan and Leeming JJA agreed) also set out the following ancillary principles which are applicable to this matter, at [19] to [21]: "The judgment or order of an inferior court within jurisdiction can create an issue estoppel binding in a superior court: see Tiufino v Warland (2000) 50 NSWLR 104; [2000] NSWCA 110 at [27] (Tiufino) per Handley JA (Mason P and Powell JA agreeing) and cases cited therein. An issue estoppel may also arise as a result of the determination of a tribunal which has jurisdiction to decide finally an issue arising between parties: Papua New Guinea, Administration of the Territory of v Daera Guba (1973) 130 CLR 353 at 453; Kuligowski v Metrobus (2004) 220 CLR 363; 208 ALR 1; [2004] HCA 34 at [22] (Kuligowski); CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49 at [15]. There may be a judicial determination, notwithstanding that the rules of evidence and other legal procedures do not apply to the proceedings in which the decision was made: see Pastras v Commonwealth (1966) 9 FLR 152 at 155 per Lush J; K R Handley and G S Bower, Res Judicata, 4th ed, LexisNexis, London, 2009, at [2.03]. The existence of a right of appeal from the determination of the primary decision-maker does not impinge upon the operation of the principle of issue estoppel. A decision is final unless and until disturbed on appeal: Kuligowski at [25]; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935; [1966] 2 All ER 536 at 565."
5. On this basis, I find that, even though unnecessary given my determination that SLF was not negligent and did not breach the March or June 2017 Retainer, the plaintiff's claims in those respects would be barred by issue estoppel.

Other Remarks

1. As ought to be apparent to the reader, these proceedings were lengthy and hotly contested. There have been significant time and resources spent by the parties and also the Court. This is of concern, particularly in light of my findings that the plaintiff's allegations are without merit, and to a significant extent, involved attempts to relitigate matters which have long since been finally determined. The overriding purpose prescribed by the Civil Procedure Act 2005 (NSW) requires parties, as well as legal practitioners and the Court, to facilitate the just, quick and cheap resolution of issues.
2. Despite the Vexatious Orders currently in place, the plaintiff has continued to institute Court proceedings that relate to his long-since concluded disputes arising from the Property, Chateau, and the Trustee.
3. Accordingly, I direct that a copy of these reasons be provided to the Attorney General for New South Wales and the Solicitor General for New South Wales so that they may give consideration to bringing an application for further orders pursuant to the Vexatious Proceedings Act relating to the plaintiff.

Orders

1. For the reasons outlined, the Court makes the following orders: 1. Judgment for the defendant; 2. The plaintiff's Motion dismissed; 3. Proceedings dismissed; 4. The plaintiff shall pay the defendant's costs of and incidental to the proceedings; 5. The parties have liberty, within 14 days, to make application for a different or special order as to costs by submission of no more than three pages in length, accompanied by any document upon which the application relies that is not otherwise in evidence. Any party affected by such application may respond within a further seven days by submission of no more than three pages in length, accompanied by any other document not otherwise in evidence; and 6. A copy of these reasons be provided to the Attorney General for New South Wales and the Solicitor General for New South Wales.

Endnotes

1. Exhibit 4, p 39; Agreed Chronology re Initial Retainers, at items 1 & 3.
2. Exhibit 4, p 40; Agreed Chronology re Initial Retainers, at item 14.
3. Exhibit 4, p 40; Agreed Chronology re Initial Retainers, at item 16.
4. Chateau Constructions (Aust) Ltd v Zepinic, Vito and Zepinic, Milla, Consumer Trader and Tenancy Tribunal, Home Building Division, 22 September 2008.
5. Vito Zepinic and Mila [sic] Zepinic v Chateau Constructions (Australia) Limited (District Court (NSW), 20 November 2009, unrep); Vito Zepinic & Anor v Chateau Constructions (Australia) Ltd (Court of Appeal (NSW), 10 May 2010, unrep).
6. Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [103] per Simpson AJA, McColl & Macfarlan JJA agreeing.
7. Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265.
8. Chateau Constructions (Aust) Ltd v Zepinic & Anor (No 6) [2010] NSWSC 538.
9. Exhibit 4, p 44; Agreed Chronology re Initial Retainers, at item 62.
10. Dr Vito Zepinic v Worrells Solvency & Forensic Accountants [2022] NSWSC 732; Application of Vito Zepinic (No 3) [2020] NSWSC 761; Application of Vito Zepinic (No 2) [2020] NSWSC 693; Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 408; Zepinic v Malanos [2020] NSWCA 293; Application of Vito Zepinic [2020] NSWSC 269 Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291; Zepinic, Vito v Chateau Constructions (Aust) Limited; Zepinic, Nina v Chateau Constructions (Aust) Limited (No 2) [2019] NSWCA 187; Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317.
11. Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582 at [1]-[5], [39] per Pembroke J.
12. Exhibit 1, p 3 - 4; Affidavit of Margaret Pavey sworn 13 April 2022 at [8], [9], [10].
13. Exhibit 1, p 3; Affidavit of Margaret Pavey sworn 13 April 2022 at [12]; Tcpt, 17 October 2022, p 22(11-47).
14. Exhibit 1, p 82; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 8.
15. Exhibit 1, p 6-7; Affidavit of Margaret Pavey sworn 13 April 2022 at [14]-[16]; Tcpt, 17 October 2022, p 24(37-38).
16. Exhibit 1, p 174; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 25.
17. Exhibit 1, p 22; Affidavit of Margaret Pavey sworn 13 April 2022 at [71].
18. Exhibit 1, p 24; Affidavit of Margaret Pavey sworn 13 April 2022 at [87].
19. Exhibit 1, p 31; Affidavit of Margaret Pavey sworn 13 April 2022 at [124].
20. Exhibit 2, p 512; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 88.
21. Exhibit 4, p 60; Agreed Chronology re Defamation, at item 51.
22. Exhibit 4, p 60; Agreed Chronology re Defamation, at item 54; Exhibit 1, p 35; Affidavit of Margaret Pavey sworn 13 April 2022 at [135].
23. Exhibit 1, p 35; Affidavit of Margaret Pavey sworn 13 April 2022 at [136]; Exhibit 3, p 532; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 96.
24. Exhibit 1, p 36; Affidavit of Margaret Pavey sworn 13 April 2022 at [141]; Exhibit 3, p 595; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 101.
25. Exhibit 3, p 620; Affidavit of Angela Smith sworn 19 April 2022 at [10].
26. Exhibit 3, p 632; Defence filed by Vito Zepinic in proceeding number 2019/245978.
27. Exhibit 3, p 631; Affidavit of Angela Smith sworn 19 April 2022 at Annexure "C".
28. MFI 4 p 17; Plaintiff's Written Submissions at [78].
29. Tcpt, 17 October 2022, p 25(45-49).
30. Exhibit 1, p 3; Affidavit of Margaret Pavey sworn 13 April 2022 at [12]; Tcpt, 17 October 2022, p 22(11-47).
31. Exhibit 1, p 5; Affidavit of Margaret Pavey sworn 13 April 2022 at [12]; Tcpt, 17 October 2022, p 22(11-47).
32. Exhibit 1, p 5; Affidavit of Margaret Pavey sworn 13 April 2022 at [12].
33. Exhibit 1, p 10; Affidavit of Margaret Pavey sworn 13 April 2022 at [31]; Tcpt 18 October 2022, p 107(34)-108(14).
34. Exhibit 1, p 44; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 2.
35. Exhibit 1, p 5-6; Affidavit of Margaret Pavey sworn 13 April 2022 at [13].
36. Exhibit 1, p 6; Affidavit of Margaret Pavey sworn 13 April 2022 at [14].
37. Ibid.
38. Exhibit 1, p 6; Affidavit of Margaret Pavey sworn 13 April 2022 at [14]-[15].
39. Exhibit 1, p 65; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 5.
40. Tcpt, 17 October 2022, pp 23(37)-24(17).
41. MFI 4 p 10; Plaintiff's written submissions at [46].
42. MFI 4 p 10-11; Plaintiff's written submissions at [47].
43. MFI 4 p 11; Plaintiff's written submissions at [50].
44. Exhibit 1, p 10; Affidavit of Margaret Pavey sworn 13 April 2022 at [31].
45. Exhibit 1, p 10; Affidavit of Margaret Pavey sworn 13 April 2022 at [30]; Tcpt 18 October 2022, pp 107(34)-108(14).
46. Exhibit 1, p 94; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 10.
47. Tcpt, 17 October 2022, pp 46(24-28), 52(41-47), 53(7-18).
48. Exhibit 1, p 134; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 18.
49. Exhibit 1, p 13; Affidavit of Margaret Pavey sworn 13 April 2022 at [40].
50. MFI 4 p 19; Plaintiff's written submissions at [87].
51. MFI 4 p 20; Plaintiff's written submissions at [93].
52. Exhibit 1, p 20; Affidavit of Margaret Pavey sworn 13 April 2022 at [65].
53. Exhibit 1, p 18; Affidavit of Margaret Pavey sworn 13 April 2022 at [56].
54. Exhibit 1, p 22; Affidavit of Margaret Pavey sworn 13 April 2022 at [71]; Exhibit 1, p 246; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 44.
55. Exhibit 2, p 322; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 51.
56. Exhibit 1, p 24; Affidavit of Margaret Pavey sworn 13 April 2022 at [87]; Exhibit 1, p 373; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 60.
57. Exhibit 1, p 26-27; Affidavit of Margaret Pavey sworn 13 April 2022 at [100].
58. Exhibit 2, p 397; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 70.
59. Exhibit 1, p 30; Affidavit of Margaret Pavey sworn 13 April 2022 at [113]-[115].
60. Exhibit 1, p 30; Affidavit of Margaret Pavey sworn 13 April 2022 at [117].
61. Exhibit 1, p 31; Affidavit of Margaret Pavey sworn 13 April 2022 at [119]; Exhibit 2, p 498; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 84.
62. Exhibit 1, p 31; Affidavit of Margaret Pavey sworn 13 April 2022 at [122].
63. Exhibit 1, p 31; Affidavit of Margaret Pavey sworn 13 April 2022 at [124].
64. Exhibit 4, p 60; Agreed Chronology re Defamation, at item 50.
65. Exhibit 1, p 32; Affidavit of Margaret Pavey sworn 13 April 2022 at [127].
66. Exhibit 4, p 60; Agreed Chronology re Defamation, at item 53.
67. Exhibit 1, p 33; Affidavit of Margaret Pavey sworn 13 April 2022 at [129].
68. Exhibit 1, p 34-35; Affidavit of Margaret Pavey sworn 13 April 2022 at [134].
69. Exhibit 1, p 36; Affidavit of Margaret Pavey sworn 13 April 2022 at [139].
70. Exhibit 1, p 36; Affidavit of Margaret Pavey sworn 13 April 2022 at [140]-[141]; Exhibit 3, p 595; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 101.
71. Exhibit 1, p 36; Affidavit of Margaret Pavey sworn 13 April 2022 at [141]; Exhibit 3, p 597; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 102.
72. Exhibit 3, p 599; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 103.
73. Exhibit 1, p 36; Affidavit of Margaret Pavey sworn 13 April 2022 at [143].
74. Tcpt, 17 October 2022, pp 64(21-26; 43-44), 66(3-12).
75. Tcpt, 17 October 2022, p 65(31-33).
76. Tcpt, 17 October 2022, p 66(43-46).
77. Exhibit 3, p 545; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 98.
78. Tcpt, 17 October 2022, p 67(15-17).
79. Tcpt, 17 October 2022, p 68(4-8).
80. Exhibit B, p 230 at tab 29.
81. Exhibit B, p 214 at tab 27.
82. Affidavit of Vito Zepinic affirmed 9 March 2022; p 3A.
83. MFI 4, p 33; Plaintiff's written submissions at [159] - [161].
84. Tcpt, 17 October 2022, p 94(7-15).
85. Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374 at [147]; Kowalczuk v Accom Finance (2008) 77 NSWLR 205; [2008] NSWCA 343 at [294].
86. Exhibit 1 p94, Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 10.
87. Exhibit 1 p134, Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 18.
88. Tcpt, 17 October 2022, p 55(30-38).
89. Tcpt, 30 October 2022, p 59(11-45).
90. Paltos v Bartier Perry Pty Ltd [2020] NSWSC 705 at [30].
91. Exhibit 3, p 599; Exhibit MP-1 to Affidavit of Margaret Pavey sworn 13 April 2022 at tab 103.
92. MFI 4 p 17 - 18; Plaintiff's written submissions at [77] - [81].
93. Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [194].
94. Dr Vito Zepinic v Worrells Solvency & Forensic Accountants [2022] NSWSC 732; Zepinic v Malanos [2020] NSWCA 293; Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291.
95. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4.
96. Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354.
97. Supreme Court Act 1970 (NSW) s 23.
98. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [22]; [2015] HCA 28; Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 at 531-2; [1939] HCA 23. 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: 23 June 2023