Zepinic v Chateau Constructions (Aust) Ltd

By virtue of orders made by Pembroke J on 25 May 2017 (Zepinic v Chateau Constructions (Aust) Ltd [2017] NSWSC 582 at [49]-[50]), upheld by the Court of Appeal on 14 December 2018 (Vito Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317), Vitomir Zepinic (“Mr Zepinic”), also known as Vito Zepinic, is constrained in his conduct of proceedings by the Vexatious Proceedings Act 2008 NSW.

The orders made by Pembroke J include orders (set forth in paragraphs [49]-[50] of his reasons for judgment) to the effect that Mr Zepinic is prohibited from instituting proceedings in New South Wales relating to or arising out of the subject matter of various proceedings, including the present proceedings (numbered 2009/00290598) in which Mr Zepinic filed on 23 March 2020 a Notice of Motion presently before the Court for consideration.

In a nutshell, the background to that Notice of Motion is as follows:

Mr Zepinic has not sought leave to file his Notice of Motion of 23 March 2020.

That Notice of Motion is, in form and substance, an attempt to re-litigate the subject matter of the Notice of Motion dismissed by Stevenson J on 19 March 2020 after a contested hearing. Absent any material change of circumstances, it is an abuse of the processes of the Court.

The Notice of Motion filed on 23 March 2020, as with the Notice of Motion filed on 17 February 2020, relates to and arises out of the subject matter of these, the proceedings in which it was filed, proceedings the subject of subsisting vexatious proceedings orders.

I am satisfied that the respondent to the Notice of Motion filed on 23 March 2020 is entitled to the protection afforded to it by those orders, made by Pembroke J on 25 May 2017 under section 8 of the Vexatious Proceedings Act.

On the respondent’s application, I make the following orders (following the language of section 13 of the Vexatious Proceedings Act and the form of orders made by Robb J in Nina Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86):

As an evidentiary foundation for making of a lump sum costs order, the solicitor for the respondent gave oral evidence as to the quantum of costs incurred by the respondent in response to the Notice of Motion filed 23 March 2020. That evidence was to the effect that: (a) the respondent’s solicitor-client costs, yet to be formally rendered in an account, total $5,500; and (b) based upon his personal experience of costs assessments (including assessments involving these parties), the party-party costs likely to be recoverable on the indemnity basis are $5,000.

The desirability of making a lump sum costs order, in the context of the Vexatious Proceedings Act, is reinforced by the case management principles set out in Part 6 Division 1 (sections 56-60) of the Civil Procedure Act 2005. To subject the parties to a necessity for costs assessment proceedings in relation to a relatively modest claim for costs would be to frustrate, if not defeat, the object of this legislation.