Zepinic v Malanos

BELL P: 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 Mr Zepinic was prohibited from instituting proceedings in New South Wales relating to or arising out of the subject matters of various proceedings. His Honour’s orders were upheld in this Court (Vito Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317) and a subsequent application for special leave to appeal to the High Court was refused (Zepinic v Chateau Constructions (Aust) Ltd [2019] HCASL 326).

The application for leave to appeal currently before the Court is from orders made by Kunc J (the primary judge) on 17 June 2020: Application of Vito Zepinic (No 3) [2020] NSWSC 761. In those orders, the primary judge gave effect to his earlier reasons for judgment in Application of Vito Zepinic [2020] NSWSC 269 delivered on 19 March 2020 (the principal judgment) and Application of Vito Zepinic (No 2) [2020] NSWSC 693 delivered on 3 June 2020 (the second judgment). In the first of those two judgments, his Honour observed:

By a Notice of Motion filed 7 April 2020, Mr Zepinic sought to set aside the principal judgment pursuant to the Uniform Civil Procedure Rules 2005 (NSW) pt 36 r 36.16. The primary judge dismissed that motion for two reasons:

Mr Zepinic then filed a third Notice of Motion (the 12 June 2020 Motion) which sought the following orders:

The orders made by the primary judge from which leave to appeal is sought were as follows:

It will be apparent from a review of these orders that the primary judge in substance had before him an attack by Mr Zepinic on Mr Malanos’ claim for remuneration in relation to his role as Trustee for the sale and on aspects of Mr Malanos’ conduct as Trustee. This remuneration was to be paid out of funds paid into Court following the sale of Mr Zepinic’s property. At [38] of the principal judgment, the primary judge said:

The assessment of a gross sum costs order was the subject of the hearing which led to the second judgment on 3 June 2020. At [36]–[41] of that decision, the primary judge noted:

The primary judge also recorded at [44]–[46] that the various amounts claimed by Mr Malanos for his remuneration had been properly proved to the satisfaction of the Court by Mr Malanos' affidavit evidence, that the amount claimed by him for his remuneration for the period was fair and reasonable and that the amount claimed for legal costs and disbursements, including on the indemnity basis, had been properly proved by the affidavits of Mr Malanos and his solicitor and were fair and reasonable.

It is against this background that the application for leave to appeal to this Court falls to be considered. That application can be dealt with in short compass for two reasons.

The first reason is that, as with Mr Zepinic’s application for leave to proceed in other proceedings in this Court (see Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291), Mr Zepinic has not sought leave under s 14 of the Act to institute this application for leave to appeal. That fact has automatic consequences under s 13 so long as these proceedings fall within the scope of the vexatious proceedings order.

For the same reason as the primary judge gave in the second judgment at [19], they do. In that judgment, his Honour observed that it was sufficient to note that:

It should be noted in this context that, in a directions hearing before this Court on 22 September 2020, Mr Zepinic was directed to file and serve submissions as to why these proceedings did not fall within the terms of the vexatious proceedings orders, and why the proceedings should not be dismissed, on the basis that leave to commence the proceedings had not relevantly been sought under the Act.

To that end, Mr Zepinic filed submissions of eight closely typed pages on 6 October 2020 together with extensive annexures. These submissions included a lengthy chronological account of the history of litigation involving Mr Zepinic dating back to 2010. In these submissions, it was contended that Mr Zepinic’s application against Mr Malanos was “unrelated to the vexation [sic] proceedings order”. That submission must be rejected. It is flatly inconsistent with the fact that, when he commenced his proceedings against Mr Malanos which led to the principal judgment, Mr Zepinic recognised that those proceedings fell within the vexatious proceedings order because he sought leave under the Act, this leave being refused by the primary judge on the basis that the claims Mr Zepinic sought to pursue were held to have no reasonable prospects of success: see [2] above.

Secondly, even if Mr Zepinic did not require leave under the Act, in his Summary of Argument in support of his application for leave to appeal, he advances no reason of principle for impugning the orders made by the primary judge. As the primary judge noted at [36] of the second judgment, reproduced at [7] above, Mr Zepinic did not address the quantum of the amounts sought by Mr Malanos.

In my opinion, the application for leave to appeal must be dismissed with costs, both because of the failure of Mr Zepinic to obtain the requisite leave under the Act and because his application for leave to appeal does not satisfy the well-established criteria for the grant of leave in any event.

WHITE JA: I agree with Bell P.