Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited

1. [1]

   McCOLLJA: I agree with Simpson AJA’s reasons and the orders her Honour proposes.

2. [2]

   MACFARLAN JA: I agree with Simpson AJA.

3. [3]

   SIMPSON AJA: There are before the Court two amended summonses, each filed on 19 June 2018. The applicants, Nina Zepinic and Vito (also known as Vitomir) Zepinic, seek leave to appeal against orders made by Pembroke J on 25 May 2017 in the Equity Division of the Supreme Court under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (“the VP Act”): Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582 (“the primary judgment”) and against orders of Robb J, also in the Equity Division, on 18 May 2018: Chateau Constructions (Aust) Ltd v Zepinic; Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWSC 963. The effect of the orders of Pembroke J of 25 May was to stay certain extant proceedings instituted by Vito Zepinic, Milla Zepinic and/or Nina Zepinic, and to prohibit Vito Zepinic, Milla Zepinic and Nina Zepinic from instituting proceedings in NSW relating to certain specific subject matters. (Milla Zepinic is the wife of Vito Zepinic, Nina Zepinic is their adult daughter).

4. [4]

   The orders of Robb J were that Vito, Milla and Nina Zepinic pay the costs of the proceedings before Pembroke J as an assessed lump sum: see also Chateau Constructions (Aust) Ltd v Zepinic; Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWSC 246.

5. [5]

   One of the two amended summonses now before the Court identifies Vito Zepinic as the applicant. The other nominates Nina Zepinic as the first applicant, and Vito Zepinic as the second applicant. It may be that this was an error and that that summons was intended to be in the name of Nina Zepinic.

6. [6]

   It is unclear whether a grant of leave is necessary in order to appeal against the orders under the VP Act (see Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129; Viavattene v Attorney General (NSW) [2015] NSWCA 44; Mahmoud v Attorney General of New South Wales [2017] NSWCA 12. It is clear, however, that leave is required for an appeal against a costs order: Supreme Court Act 1970 s 101(2)(a) and (q).

7. [7]

   Since I am satisfied that error has been demonstrated in the primary judgment and I am therefore further satisfied that leave to appeal (to the extent that it is necessary) ought to be granted, it is unnecessary to take further time on whether leave is required for an appeal against the orders under the VP Act. If the appeal against the orders of Pembroke J were to succeed, one necessary consequence would be that an appeal against the orders of Robb J must also succeed. Leave to appeal against those orders should therefore also be granted. I will treat Vito Zepinic and Nina Zepinic as appellants. Although Ms Milla Zepinic is also affected by the orders, she has not sought leave to appeal nor filed a notice of appeal.

8. [8]

   The appeal is subject to s 75A of the Supreme Court Act 1970 (NSW), and is a rehearing. By subs (6) this Court has the powers and duties of the court from which the appeal is brought, including powers to draw inferences and make findings of fact, and, by subs (10), to make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.

Vexatious proceedings

1. [9]

   By s 8(7) of the VP Act, the Supreme Court may make orders (called “vexatious proceedings orders”) in relation to a person. The court may make any one or more of the following orders:

2. [10]

   Before doing so, the court must be satisfied of the matters set out in subs (1). Subs (1) and (2) provide as follows:

3. [11]

   “Vexatious proceedings” is defined in s 6. At the time the primary judgment was delivered, s 6 was in the following terms:

4. [12]

   “Proceedings” is widely defined in s 4 to include:

5. [13]

   The task assigned to a judge asked to make orders under the VP Act is not simple. The first step is to identify the “proceedings” the subject of the application, and said to be “vexatious”. The second step is to determine (applying s 6) which, if any, of those proceedings is:

6. [14]

   The third step is to determine whether the person has “frequently” instituted or conducted vexatious proceedings in Australia, or has acted in concert with such a person (whether or not subject to a vexatious proceedings order) or who is the subject of a vexatious proceedings order (s 8(1)). (The requirement for frequency does not apply if the court is satisfied that the person has acted in concert with a person who is subject to a vexatious proceedings order, or who has frequently instituted or conducted vexatious proceedings in Australia (see s 8(1)(b)).

7. [15]

   The power conferred by s 8(7) being discretionary, the final step is to determine the manner in which the discretion is to be exercised, bearing in mind the wide scope of the power, particularly as stated in s 8(7)(c).

8. [16]

   What is meant by “frequently” has been the subject of consideration of this Court. In Potier Leeming JA (with whom Basten and Meagher JJA agreed) said:

9. [17]

   On a number of occasions this Court has emphasised the need for a judge determining an application for vexatious proceedings order to deal individually with each proceeding said to come within the s 6 definition: see, for example, Viavattene at [49], [67]. In that case, a concession was made by the Attorney-General, who was the applicant, that the failure to take that course was an error. Subsequent examination by this Court exposed why the error was significant: a number of the instances relied on by the Attorney-General at first instance as vexatious did not stand up to scrutiny.

10. [18]

    In Mahmoud v Attorney General of New South Wales [2017] NSWCA 12, a similar concession to that made in Viavattene was made (again by the Attorney-General) and for similar reasons. It is apparent that this Court accepted that the concession was properly made: see [16]-[17], [45]-[49]. Payne JA said:

11. [19]

    In Martin v Attorney General for the State of New South Wales [2014] NSWCA 189 Sackville AJA pointed out the serious consequences of a vexatious proceedings order at [24], highlighting the need for careful consideration to be given to each proceeding the subject of an application.

Background

1. [20]

   A very much abbreviated history is as follows.

2. [21]

   In about February 2006 Vito Zepinic and Milla Zepinic contracted with the respondent (Chateau Constructions (Aust) Ltd, to whom I will refer as “Chateau”), a construction company, for building work to be carried out on a residential property in Turramurra (“the Turramurra property”). Disputes arose and, eventually, Chateau commenced proceedings in the Consumer, Trader and Tenancy Tribunal (“the CTTT”), claiming unpaid fees. Vito and Milla Zepinic cross-claimed against Chateau, alleging defects in the work done. Chateau succeeded in its claim; the Zepinics failed in their cross-claim, which was dismissed: Chateau Constructions (Aust) Ltd v Zepinic, Vito and Zepinic, Milla, Consumer Trader and Tenancy Tribunal, Home Building Division, 22 September 2008. Vito and Milla Zepinic appealed unsuccessfully to the District Court against this decision: Vito Zepinic and Mila [sic] Zepinic v Chateau Constructions (Australia) Limited, unreported, District Court of NSW, 20 November 2009. They sought leave to appeal to this Court against the District Court decision, also unsuccessfully: Vito Zepinic & Anor v Chateau Constructions (Australia) Ltd, unreported, NSW Court of Appeal, 10 May 2010 per Tobias JA. The Zepinics do not appear to have sought review under s 46(4) of the Supreme Court Act of that decision. Accordingly, the decision should have brought to an end the litigation involving the contract with Chateau. It did not.

3. [22]

   Since then, Vito Zepinic, sometimes jointly with either his wife, Milla Zepinic and later, with his daughter Nina Zepinic, has instituted numerous proceedings. The proceedings include applications in the Equity Division of the Supreme Court, appeals or applications for leave to appeal to this Court, and applications for special leave to appeal to the High Court of Australia. They were largely, if not entirely, unsuccessful. Without exception, they involve attempts to revive issues that were finalised by the decision of Tobias JA. It will be necessary to detail many of these applications and the manner in which they were conducted below.

4. [23]

   Ultimately, as a result of subsequent orders of the Supreme Court, the Turramurra property was sold at auction in November 2014.

5. [24]

   On 26 September 2016 Chateau filed, in the Equity Division, two notices of motion. The first, (filed in proceedings 2009/290598) sought orders against Vito and Milla Zepinic under s 8(7)(a)(b) of the VP Act. The second, (filed in proceedings 206/97515) sought similar orders against Vito and Nina Zepinic. The notices of motion were supported by three affidavits sworn by Chateau’s solicitor, Andrew Loel, which set out, in fine and extensive detail, the various proceedings in which the Zepinics had been involved, and to which were exhibited a large quantity of evidentiary documentation. The evidence ran to 6 lever arch folders.

6. [25]

   The hearing of the application was initially fixed for 8 May 2017, but was delayed by one day, to 9 May. Notice was given to Vito Zepinic (and Milla and Nina) of the change of date.

7. [26]

   On 9 May none of the respondents to the notices of motion appeared. The primary judge was satisfied that they were aware of the date.

8. [27]

   Chateau provided extensive written submissions (96 pages) setting out again, in great detail, the various proceedings on which it relied as vexatious. It also set out, by reference to the evidence exhibited to Mr Loel’s affidavits, a good deal of material relating, not only to the nature of the various proceedings, but also to the manner in which they had been conducted. By way of example, Chateau identified seven letters tendered by Vito Zepinic on the last day of the CTTT proceedings, two of which were rejected and five of which were admitted into evidence. Chateau argued that the letters had been “fraudulently fabricated”.

9. [28]

   Chateau also made submissions on relevant legal propositions. It specifically referred to Viavattene, Potier, and Mahmoud. It drew attention to those parts of the decisions that concerned the need for a judge dealing with an application under the VP Act to focus attention individually on the proceedings on which reliance was placed.

The primary judgment

1. [29]

   The primary judge made some general observations about the purpose of the VP Act, and set out a brief history, again in general terms, of the proceedings in which members of the Zepinic family had been involved. He made a finding of fact (at [15]) that the seven letters referred to above had been prepared by Vito and Milla Zepinic after the conclusion of the CTTT hearing on 22 September 2008. He did not identify how this finding engaged any of the paragraphs of the s 6 definition of vexatious proceedings.

2. [30]

   His Honour then referred to some of the proceedings instituted or maintained by, as he said, Vito Zepinic. He made no findings relating the proceedings to any of the paragraphs of s 6. He did, however, make a number of findings, adverse to Vito Zepinic, about the manner in which he had conducted the proceedings, finding, again, that another letter was prepared dishonestly (at [20]). He did not state how this conduct engaged s 6. He described submissions made by Vito Zepinic in one proceeding as having:

3. [31]

   At the conclusion of the judgment, the primary judge stated the legal principles applicable, and quoted [49] and [67] of Viavattene, in which, in the context of the construction of “frequently” as it appears in s 8 of the VP Act, Leeming JA stated the importance of addressing individually the proceedings upon which reliance is placed by an applicant for an order under s 8(7). He did not, however, undertake that exercise.

4. [32]

   He concluded (at [44]-[47]) with some observations about “the phenomenon of the vexatious litigant”, with reference to psychiatric opinion (not explicitly directed to any member of the Zepinic family). Having made those remarks, he made some further observations specifically about Vito Zepinic’s approach to the litigation and said:

The appeal

1. [33]

   The draft notices of appeal filed by Vito Zepinic and Nina Zepinic on 19 June 2018 should be treated as notices of appeal. That filed by Vito Zepinic identifies the appeal grounds as follows:

2. [34]

   Each sought orders that the appeal be allowed and that the orders made by Pembroke J and Robb J be set aside. Vito Zepinic also sought an order to:

3. [35]

   Both sought “reinstatement” of orders sought in a notice of motion filed on 13 May 2016, without identifying what those orders were.

4. [36]

   Ground 1 of Vito Zepinic’s appeal appears to be intended to identify a matter arising under the Constitution or involving its interpretation. Section 75(i) of the Constitution confers original jurisdiction on the High Court in all matters arising under any treaty. Section 38(a) of the Judiciary Act 1903 (Cth) provides that, in matters arising directly under any treaty, the jurisdiction of the High Court is exclusive.

5. [37]

   By s 78B of the Judiciary Act, where such an issue is raised it is the duty of a court not to proceed unless satisfied that notice has been given to the Attorneys-General of the Commonwealth and the States and a reasonable time has elapsed for the Attorneys-General to consider the question of intervention.

6. [38]

   So far as I can ascertain, the “matter arising under the Constitution” that Mr Zepinic claims is involved concerns service of documents on him at a time when he was not present in Australia. He asserts that the service of such documents is subject to “the Hague Convention of the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters.”

7. [39]

   Notices under s 78B were served. Although each Notice runs to 6 pages, it is not possible to discern any constitutional issues for determination. Replies have been received from each Attorney-General, declining to intervene. There was therefore no impediment to the Court proceeding to hear and determine the appeals.

8. [40]

   Chateau filed a Notice of Contention, contending that the decision of the primary judge should be affirmed on grounds other than those specified in the primary judgment. The essential point of the Notice of Contention was that the primary judge ought to have made specific findings as to the institution and conduct of particular proceedings by the appellants, and should have found that each appellant was a person who frequently instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1)(a) of the VP Act. In the alternative, Chateau contends (and seeks a finding) that Nina Zepinic was acting in concert with Vito Zepinic, and, by reason of s 8(1)(b) of the VP Act, became liable to orders under subs (7).

9. [41]

   At the hearing of the appeal, Vito Zepinic appeared in person, unrepresented. Nina Zepinic did not appear. Vito Zepinic informed the Court that she is resident in Germany, but had authorised him to conduct the appeal on her behalf. Counsel for Chateau pointed to material sufficient (for my part) to establish that she was aware of the date of the appeal. The Court accordingly proceeded in her absence.

10. [42]

    Vito Zeppinic filed written submissions, an amended version of which was contained in the White Folder, supplemented by “updated” submissions dated 15 April 2018. Nina Zepinic also filed written submissions, an amended version of which was contained in the White Folder relevant to her appeal. These were substantially similar to those filed by Vito Zepinic.

11. [43]

    Each appellant nominated a number of contentions (11 in the case of Vito Zepinic, 12 in the case of Nina Zepinic). An analysis shows that they may be reduced to 6 and formulated as follows:

12. [44]

    In the case of Nina Zepinic, an additional contention was made that the orders were made against a person who had not been party to the relevant proceedings.

13. [45]

    In both cases the appellants commenced their submissions with what they called “a Statement of Facts”. In each case the first factual matter identified was the ownership of the Turramurra property, the subject of the contract that gave rise to the original proceedings in the CTTT. In short, the appellants contended that the owner of the property was Nina Zepinic and not Vito and Milla Zepinic. No evidence was adduced to support the proposition (although it had been a proposition advanced in earlier proceedings). It is entirely irrelevant to the appeal against the orders made by the primary judge on 25 May 2017 and Robb J on 18 May 2018.

14. [46]

    The submissions went on to raise issues concerning service on the appellants of notice of the proceedings before the primary judge. They appeared to assert that they had not been served in accordance with rules providing for service on respondents out of the jurisdiction.

15. [47]

    Finally, they made submissions concerning the application of various provisions of the VP Act.

16. [48]

    Vito Zepinic also complained of those parts of the primary judgment in which the primary judge made reference to the “phenomenon of the vexatious litigant”, referred to a diagnosis of “delusional disorder” or “querulous paranoia”. Vito Zepinic’s complaint is that there was no psychiatric evidence before the primary judge that would justify him making any finding about his psychiatric condition, and that the remarks had been damaging to his reputation.

17. [49]

    Although Chateau made a somewhat half-hearted submission to the effect that findings made by the primary judge were sufficient to discharge his function under the VP Act, it expressly accepted that “it would have been preferable for the primary judge to deal with the applications by making findings of the kind that were held to be necessary Viavattene and Mahmoud”. Later in the submissions, it accepted that “the reasons arguably fall short of the requirements” of those decisions.

18. [50]

    Chateau primarily relied upon the notice of contention.

Determination

1. [51]

   Of the six contentions made by the appellants outlined above, five may be disposed of expeditiously.

2. [52]

   The first, concerning alleged “breaches” of the Constitution and the Judiciary Act, depends upon an assertion by Vito Zepinic that he was out of the jurisdiction at certain relevant times (although it is not clear at what times) and that, as a result, service of documents should have been, but was not, effected in accordance with the Hague Convention. Even if an issue as to service did arise, it is not a matter “arising directly under” any treaty. That being the issue raised by ground one of the appeal, that ground should be rejected.

3. [53]

   As to the second and third contentions, no evidence, nor any submissions, was directed to any contravention of the UCPR, or for the proposition that Chateau’s proceedings were an abuse of process. The omnibus assertions summarised in the contention I have numbered (v) are drawn from principles of judicial review, and are not directly applicable. Even if they were, there is no support for any of them, and no argument was addressed to them. The final contention is difficult to understand, but is also unsupported.

4. [54]

   There is, however, substance in the complaint that the procedures required by the VP Act were not followed. As indicated above, applications under that legislation call for (i) identification of each proceeding alleged to be “vexatious”; (ii) determination, in respect of each such proceedings, whether it comes within one or more of the paragraphs of the definition in s 6 and is vexatious; (iii) whether the person concerned has instituted vexatious proceedings “frequently” and (v) consideration of the exercise of discretion in the light of the previous conclusions. That exercise was not undertaken. Instead, the primary judge made generalised references to “vexatious litigants”, and gave some examples of proceedings in which Vito Zepinic and Nina Zepinic (and Milla Zepinic) had been involved, and made adverse findings about their honesty in the conduct of those proceedings. This falls far short of what is required. Ground 2 of each appeal must be upheld.

5. [55]

   There is, moreover, some substance in Vito Zepinic’s complaint concerning the last three paragraphs of the primary judgment, in which his Honour made reference to the “phenomenon of the vexatious litigant”. In particular, there is substance in the complaint of the approach the primary judge took to relating what he understood as psychiatric learning to Vito Zepinic. However, those paragraphs appear in a part of the judgment after the decision had been made, and are immaterial to the question whether a vexatious proceedings order ought to have been made. In any event, since I have concluded that ground two is of substance, those comments can be put aside.

6. [56]

   It does not follow from the upholding of ground 2 that the appeals succeed. It is necessary to consider whether the arguments advanced on the notice of contention are such as to support the orders made by the primary judge.

Chateau’s Notice of Contention

1. [57]

   By its Notice of Contention Chateau calls on this Court to make the findings of fact and draw the conclusions that it asserts ought to have been made and drawn by the primary judge. To the extent that findings of fact are sought, the powers conferred by s 75A of the Supreme Court Act are engaged.

2. [58]

   The litigation in which the Zepinic family became enmeshed was not initiated by them. It began in January 2007 with the application by Chateau in the CTTT for an order for the payment of money ($223,000) representing progress payments which it alleged were owing in relation to the building work on the Turramurra property. It was then common ground that Vito and Milla Zepinic were the registered owners of the property. On 25 June 2007 Vito and Milla Zepinic filed a cross-claim, alleging incomplete and defective work, and claiming various sums by way of reimbursement and compensation, as well as rectification work. Those ordinarily routine proceedings developed into a complex mass of litigation that took place in the CTTT, the District Court, the Supreme Court, this Court, and the High Court. Dozens of applications have been made, whether by summons, notice of motion, appeal or application for leave to appeal. Not all proceedings have been initiated by the Zepinic family; Chateau has also made a number of applications.

3. [59]

   Regrettably, neither party provided a chronology of the litigation. One might have expected that Chateau would have done so.

4. [60]

   Two themes were recurrent throughout the litigation. The first was that Chateau’s performance of the building work at the Turramurra property was deficient. Although that claim was never litigated on its merits, the outcome was entrenched when the District Court appeal was dismissed (on 20 November 2009) and finally laid to rest when Tobias JA dismissed an application for leave to appeal (10 May 2010). Notwithstanding that, Mr Zepinic, and sometimes Milla Zepinic, repeatedly raised their complaints about Chateau’s conduct of the building contract.

5. [61]

   The second recurring theme concerned service of documents. Vito (and sometimes) Milla Zepinic maintained, repeatedly, that from 10 March 2009 when they took up residence in the United Kingdom, documents were required to be served on them by a complex procedure mandated either by the Hague Convention, or by UCPR Pt 11A (it is not entirely clear what they maintained was the proper procedure). As time went on they appeared to assert that they had not been served with the documents initiating the CTTT proceedings, even though that occurred in 2006, well before their change of residence.

6. [62]

   There were anomalies in the position taken by the Zepinics. For example, as Emmett JA pointed out in Zepinic v Chateau Constructions (Australia) Ltd [2014] NSWCA 248, they provided only limited information about their address for service; and as Leeming JA and McColl JJA pointed out in Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 50, they did not, in initiating proceedings, themselves comply with the requirements of providing a local address for service.

7. [63]

   Towards the end of the saga Vito and Nina Zepinic added claims, quite inconsistent with the position Vito and Milla Zepinic had taken until then, that Nina Zepinic was the owner of the Turramurra property.

8. [64]

   The contention of Chateau is that many, indeed the great majority, of the proceedings that have been initiated by Mr Zepinic either alone or in conjunction with his wife, Milla Zepinic, or on a more limited basis with Nina Zepinic, have been made in circumstances such as to bring them within the definition of “vexatious proceedings”, in s 6(a)-(c) of the VP Act. Chateau also contends that the manner in which Mr Zepinic in particular has conducted the proceedings was such as to harass or cause unreasonable annoyance, delay or detriment, such as to come within s 6(d) of the VP Act and therefore be categorised as vexatious.

9. [65]

   Chateau has also contended that the manner in which Mr Zepinic has conducted himself in applications brought by it qualifies as vexatious.

10. [66]

    A hearing in the CTTT of Chateau’s original claim took place over 5 days in May and September 2008. Initially, the Zepinics were represented by counsel, but for the final 3 days they represented themselves. At the commencement of the September hearings they sought an adjournment on the basis that they had no legal representation. Evidence was given by both Vito and Milla Zepinic, as well as by Mr Loel, representing Chateau. The focus of that inquiry was on the circumstances in which the Zepinics came to be unrepresented.

11. [67]

    The application for adjournment was rejected, with the Senior Member giving reasons that included adverse reference to the evidence given by Vito Zepinic. She said that he had given three different versions of the circumstances in which his former solicitor ceased to represent him.

12. [68]

    On 18 December 2008 the CTTT delivered its decision. It upheld Chateau’s claim for payment, and dismissed the Zepinics’ cross-claim. It should be noted, however, that the rejection was not because of failure of the Zepinics to establish that any of the work was defective, but because the CTTT held that, as the parties maintained that the contract remained “on foot”, it was not open to the Zepinics to seek rectification and completion of work. There was thus no finding on the merits of the cross-claim.

13. [69]

    During the course of the hearing Vito Zepinic tendered in evidence a number of letters (referred to in [27] above). The tender of two of the letters was rejected. Others were admitted. In giving her reasons for rejection of the two, the Senior Member made observations clearly doubting, but making no express finding as to, their authenticity. (These letters were referred to by the primary judge, who found all seven to have been fabricated).

14. [70]

    Chateau contended before the primary judge that the cross-claim was an abuse of process (VP Act, s 6(a)), and instituted without reasonable ground (s 6(c)). It does not maintain that position on appeal. It argues, however, that Vito Zepinic’s conduct in tendering fabricated letters was conduct within s 6(d) of the VP Act - that is, that the proceedings were conducted in such a way as to harass or cause unreasonable annoyance, delay or detriment.

15. [71]

    Vito and Milla Zepinic appealed to the District Court against the orders of the CTTT. Chateau filed a Notice of Motion seeking an order that the appeal be dismissed as incompetent, having been commenced outside of the time permitted by the Rules. That Notice of Motion was dismissed by Gibb DCJ on 3 July 2009. Her Honour took that course on the basis of the then current interpretation of the relevant statutory provisions concerning the date on which, for the purpose of an appeal, time begins to run. Subsequently, a decision of this Court apparently cast some doubt on that interpretation and Chateau filed a second Notice of Motion seeking the same order. On 20 November 2009, applying the law as it was then understood, Colefax DCJ held that he had jurisdiction to determine the question raised, notwithstanding the earlier decision by Gibb DCJ, and that the appeal had been filed out of time. He refused an application made orally at the hearing on behalf of the Zepinics for extention of time. He therefore dismissed the appeal, and ordered the Zepinics to pay Chateau’s costs.

16. [72]

    Chateau did not argue at first instance and does not argue now that commencing the District Court appeal was vexatious.

17. [73]

    On 15 December 2009 Vito and Milla Zepinic filed a Notice of Intention to Appeal and, on 19 February 2010, a summons seeking leave to appeal, against the dismissal of the District Court appeal. They also filed a summary of argument. The summary of argument raised a question concerning the decision of Colefax DCJ to reconsider, in the light of the later decided case, the issue of the timing of the filing of the decision of Colefax DCJ, essentially a jurisdictional question.

18. [74]

    By Notice of Motion filed in this Court on 19 March 2010 Chateau sought an order that the summons seeking leave to appeal be dismissed and, (against the possibility that that order was not made) alternative orders. That notice of motion came on for hearing before Tobias JA on 10 May 2010. The Zepinics did not appear.

19. [75]

    Tobias JA ordered that the summons be dismissed and ordered Vito and Milla Zepinic to pay Chateau’s costs. He did so, in part, because the summons was not filed within time and in part because the summary of argument filed with the summons “does not even come close to complying with the Rules”. He said that the latter reason was sufficient, in itself, for striking out the summons.

20. [76]

    There is no evidence that the Zepinics sought, under s 46(4) of the Supreme Court Act, review of the decision of Tobias JA. As indicated above [22] the dismissal of the application for leave to appeal effectively brought to an end the Zepinic’s attempts to litigate the issues they sought to raise in the earlier claim in the CTTT.

21. [77]

    The summons seeking leave to appeal was a proceeding within the meaning of s 4 of the VP Act. Chateau contended, and maintains in this Court, that the proceeding was, within ss 6(a) and 6(c) of the VP Act, an abuse of process and was instituted without reasonable ground.

22. [78]

    I would not accept that the attempt to appeal against the District Court ruling was of itself vexatious. It is not uncommon for litigants, even when legally represented, to overlook statutory time limits, and it is, unfortunately, also not uncommon to see misconceptions contained in written or oral submissions. This also can happen even when the litigant is legally represented.

23. [79]

    That, however, was not the end of the Zepinic’s attempts to challenge the decision of the CTTT. Notwithstanding the order of Tobias JA, on 9 July 2013 (that is, 3 years later) Vito Zepinic filed a Notice of Motion in this Court, in the proceedings that had been dismissed by Tobias JA. The orders he sought were:

24. [80]

    It appears (although it is not clear) that the “Appeal” which he referred in par 1 was the appeal to the District Court, in respect of which his application for leave to appeal had been dismissed by Tobias JA.

25. [81]

    In support of the Notice of Motion Mr Zepinic filed an affidavit affirmed on 6 June 2013, in which he asserted that he had been resident in the United Kingdom since 10 March 2009, and that he had not received Chateau’s Notices of Motion filed in the District Court appeal.

26. [82]

    He filed a further affidavit, affirmed on 10 July 2013, in which he recorded a lengthy history of his dealings with Chateau, and his complaints about the performance of the building contract by Chateau.

27. [83]

    Chateau contended and maintains that neither the notice of motion nor the affidavits provides any reasonable ground for the orders sought. The notice of motion was, patently, an attempt to circumvent the order of Tobias JA, and activate an appeal against the District Court order. No explanation was given for the attempt to recommence an appeal to this Court more than 3 years after Tobias JA had dismissed the first attempt. In those circumstances the proceeding instituted by the 9 July 2013 notice of motion was an abuse of process, and a vexatious proceeding.

28. [84]

    By notice of motion filed on 29 May 2013 (amended on 17 June 2013), Chateau sought orders for payment of costs by a specific gross sum, and for interest on costs in relation to costs incurred in respect of the application for leave to appeal. On 1 July 2013, on application by Chateau, McColl JA ordered that service of the notice of motion could be effected by mail to a London address given by Vito Zepinic: Zepinic v Chateau Constructions (Australia) Ltd [2013] NSWCA 214. On 18 July 2013 McColl JA declined to make the order sought and dismissed Chateau’s amended notice of motion as incompetent: (Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227).

29. [85]

    On 6 August 2013 Vito Zepinic filed an amended Notice of Motion, seeking a variety of orders including an order setting aside the order of McColl JA of 1 July (permitting Chateau to effect service by mail). Other orders sought, included an order to set aside the District Court orders dismissing the appeal from the CTTT, and orders setting aside other orders to the Supreme Court and this Court, not properly within the proceeding in which the notice of motion was filed. He filed an affidavit in support, in which he repeated his claim to have been resident in the United Kingdom since 10 March 2009 and that he had not been served with Chateau’s notices of motion in the District Court and in this Court. He referred to proceedings commenced by Chateau in the Supreme Court (to which I will come) in 2009 and asserted that Chateau had “fraudulently” advised the court that service had been effected.

30. [86]

    Annexed to the affidavit was a copy of a letter dated 8 September 2009 purportedly from Vito and Milla Zepinic to Chateau. Relevantly, the letter read:

31. [87]

    Superimposed onto the photocopy of the letter was a copy of a Registered Post Delivery Confirmation and Advice Receipt purporting to show delivery of a registered post item on 10 September 2009. There was evidence before the primary judge that Chateau did not receive the letter annexed to the affidavit, although it had received other correspondence from the Zepinics of the same date.

32. [88]

    Chateau contends that the letter annexed to the affidavit is a fabrication and that the Delivery Receipt is one for another letter of the same date that was delivered. In support of its submission, Chateau points to other letters post-dating 8 September written by Vito and/or Milla Zepinic, giving a Turramurra address (not the Turramurra property). It is Chateau’s case that the letter was fabricated in order to provide support for the false assertion that Chateau’s notices of motion in the District Court appeal had not been served. The primary judge was satisfied that the letter had been prepared dishonestly. That was a finding that, in the circumstances, was open to him and should not now be disturbed.

33. [89]

    Vito Zepinic filed lengthy submissions in support of the notice of motion. He sought to traverse the decision of the CTTT. On three occasions he made accusations against Chateau of fraud and of misleading statements. He pointed to no evidentiary support for those accusations.

34. [90]

    The amended notice of motion of (6 August 2013) came before this Court, constituted by Basten, Gleeson and Leeming JJA, on 18 February 2014. Mr Zepinic did not appear. The Court treated the notice of motion as an application, pursuant to s 46(4) of the Supreme Court Act, for review of the decision of McColl JA of 1 July 2013. The judgment of the Court opened with the observation that Vito Zepinic “calls himself ‘Dr Vito Zepinic’, which is contentious” and referred to Zepinic v Psychologist Registration Board of NSW [2010] NSWPST 6. The Court noted, however, that that was immaterial for their present purposes.

35. [91]

    Materially, the court held the application to set aside the judgment of McColl JA of 1 July 2013 to have been misconceived, and not susceptible of s 46(4) review, and that, in any event, the substance of Chateau’s application (for interest on costs and a gross sum costs order (the subject of McColl JA’s order permitting service by mail) had been dismissed as incompetent by her Honour on 18 July 2013 (well before Mr Zepinic’s notice of motion was filed). It then noted that other orders sought by Vito Zepinic were also misconceived and concluded:

36. [92]

    The Court dismissed the amended notice of motion and ordered Vito Zepinic to pay Chateau’s costs: Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27. On 3 April, on Chateau’s application, the Court varied the costs order by specifying a gross sum: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99.

37. [93]

    Chateau contended, and maintains, that the proceedings instituted by the amended notice of motion were vexatious. In support of that submission Chateau placed considerable reliance on what it described as “grave and scandalous” allegations made by Mr Zepinic without any proper basis.

38. [94]

    Although the document filed on 6 August 2013 purported to be an amendment to the 9 July notice of motion it went further and should be regarded as a fresh proceeding, at least within s 4(d) of the VP Act.

39. [95]

    The application to set aside McColl JA’s orders of 1 July, was, at least from the date of her Honour’s decision dismissing Chateau’s notice of motion on 18 July, pursued without reasonable ground. By that time, the proceedings in respect of which McColl JA had permitted service by mail, had been dismissed. There was nothing to be achieved by pursuing a challenge to the orders concerning service. Moreover, the other orders sought in the notice of motion were entirely unsustainable as is apparent from the judgment. The proceeding instituted on 6 August 2013 was vexatious within the meaning of s 6(c) of the VP Act.

40. [96]

    On 30 April 2014 Vito Zepinic filed a further notice of motion in this Court in which he sought an order under UCPR 36.15 setting aside the decision of Basten, Gleeson and Leeming JJA.

41. [97]

    R 36.15(1) provides:

42. [98]

    Mr Zepinic asserted (in the body of the notice of motion) that he had never been served with any documents by Chateau, and complained that the comment in the judgment concerning his entitlement to be called “Dr Zepinic” was untrue and defamatory and professionally damaging to him. He sought to “affirm” the orders he had sought, but which had been refused, in the amended notice of motion of 6 August.

43. [99]

    He filed an affidavit in support of this application. He again attacked Chateau (and its legal representatives) accusing them of:

44. [100]

    He added:

45. [101]

    This Court dismissed the notice of motion: Zepinic v Chateau Constructions (Aust) Ltd (No 3) [2014] NSWCA 366 (per Basten, Gleeson and Leeming JJA). It said:

46. [102]

    There was not the slightest basis for the claim under r 36.15(1) that the judgment of 18 February had been entered irregularly, illegally or against good faith. The notice of motion was no more than an attempt to re-litigate the issues that had been unsuccessfully litigated previously in this Court, and, indeed, in the CTTT and the District Court. It was an abuse of process. Moreover, the abusive language used throughout the affidavit in support demonstrates that the proceeding was conducted:

47. [103]

    Presumably in order to preserve its position, on 2 February 2009 Chateau lodged a caveat on the title of the Turramurra property, of which the registered proprietors were Vito and Milla Zepinic. On the application of Milla Zepinic, the Registrar-General gave notice (undated) under s 74J of the Real Property Act 1900 to Chateau that the caveat would lapse within 21 days unless extended by order of the Supreme Court. By summons filed on 22 September 2009 (proceeding numbered 4643 of 2009) Chateau sought such an extension. It also sought a declaration that the property was charged with the due payment to it of the amounts ordered by the CTTT together with interest.

48. [104]

    The summons was listed for hearing on 28 September 2009. Chateau was represented. There was no appearance of the Zepinics. The judge (Slattery J) was satisfied that they were aware of the proceedings. (At that time, the Zepinics had legal representation, and there was evidence that they had instructed their lawyers not to appear).

49. [105]

    The charge on the property upon which Chateau sought to rely depended on the continued validity of the orders of the CTTT. Since at that time the District Court appeal from that decision had not been determined, Slattery J declined to make the declaration sought, pending the outcome of that appeal (which occurred on 20 November 2009). He did, however, order the extension of Chateau’s caveat: Chateau Constructions (Aust) Ltd v Zepinic [2009] NSWSC 1339. On 8 October, on the application of counsel then appearing for the Zepinics, Slattery J adjourned the application to 3 December.

50. [106]

    On 3 December 2009, the Zepinics did not appear. In an ex tempore judgment Slattery J made a declaration (in accordance with the terms of the contract) that Vito and Milla Zepinic had charged the Turramurra property with due payment of $370,847.35 plus interest at a specified rate, and ordered the Zepinics to pay the costs on an indemnity basis: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373. He made orders for service on the Zepinics.

51. [107]

    Following the decision of 8 December, on or about 8 December, there was received in the chambers of Slattery J a letter, apparently signed by Vito Zepinic and dated 24 November 2009. He gave an account of the purchase of the property and the engagement of Chateau. He complained of the procedure in the CTTT. Enclosed with the letter was a document entitled:

52. [108]

    Chateau contended and maintains that, by sending the letter of 24 November, Vito Zepinic instituted and conducted a vexatious proceeding within the meaning of s 6(a), (c), (d) of the VP Act.

53. [109]

    I do not accept that the letter constitutes a proceeding even within the broad definition of s 4 of the VP Act. At this point (so far as the evidence goes), the only proceeding before the court was that instituted by Chateau. It could not therefore be said that, in this respect, Vito Zepinic instituted proceedings that were an abuse of process of the court, or were pursued without reasonable ground. Nor could it be said that writing a letter to a judge (no matter how improper that may be) is the “institution” of a proceeding.

54. [110]

    It may be slightly more arguable that the proceedings were conducted in a way that came within para (d) of s 6, but, on balance, I also reject that. At the date the letter appears to have been received in the chambers of Slattery J, judgment had been given. There were, so far as the evidence goes, no outstanding applications. The letter should be taken to be some sort of response to the decision, but it could not be said to be “a way of conducting proceedings”.

55. [111]

    On 11 December Chateau filed an amended summons in which it sought judgment against Mr Zepinic in the sum of $370,047.35 with interest and orders for the appointment of trustees for the sale of the Turramurra property and the sale of that property.

56. [112]

    On 15 December 2009, Vito and Milla Zepinic filed a notice of motion in the Supreme Court in which they sought orders that the judgment of 28 September (by which Slattery J had extended Chateau’s caveat) “be dismissed” and that Chateau’s amended summons of 11 December be dismissed. The notice of motion was returnable on 21 December.

57. [113]

    On 17 December 2009 Vito and Milla Zepinic filed a cross-claim in the caveat proceedings (4643 of 2009). They claimed damages for breaches and variations of the building contract and loss of rental income. They again sought to put in issue their claims of defective work at the Turramurra property. These were matters, as I have said, that had been finally determined in the CTTT proceedings and the District Court appeal. The Cross-claim was served on Chateau on 12 February 2010. It was filed outside the time provided by the Rules. On 21 December, when the notice of motion of 15 December was returnable, the Zepinics did not appear and were not represented. The notice of motion was stood over to 18 February 2010. Slattery J was satisfied that the Zepinics had been given sufficient notice of the proceeding, but, in view of the gravity of the orders sought, and their consequences, adjourned the proceedings to 18 February 2010. He pointed out the potential consequences of the orders sought by Chateau: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 4] [2009] NSWSC 1478. On 18 February Vito Zepinic appeared, and represented Milla Zepinic. He produced and relied upon statements of himself, Milla and Nina Zepinic, and two volumes of documents. Included in the documents were 7 letters. These were the letters referred to by the primary judge at [13]. There were also emails that Chateau submitted (and maintains in this Court) were fabricated. He made an oral application, which was granted, for leave to file an amended notice of motion. The amendment sought included an extension of time in which to file a cross-claim.

58. [114]

    At the conclusion of the hearing on 18 February Slattery J allowed the parties the opportunity to provide supplementary written submissions. On 26 February Vito Zepinic availed himself of that opportunity. He made numerous accusations against Chateau of misleading the court, fraud in the performance of the work at the Turramurra property, and of making false statements. On 5 March 2010 he forwarded further submissions, in reply to those filed by Chateau and in which he made similar accusations.

59. [115]

    On 8 April 2010 Slattery J delivered judgment: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 5] [2010] NSWSC 265. He extended the operation of the caveat, and made a further declaration that the Zepinics had charged the Turramurra property with due payment to Chateau of $370,847.35 plus interest at the stated rate. He made an order for the appointment of trustees for the sale of the property and for the sale of the property. However, he ordered a stay until further order of that order.

60. [116]

    On 14 April 2010 Mr Zepinic filed further submissions, in the same vein as those previously filed. On 21 May 2010 Slattery J refused to extend the time for the filing of the Cross-Claim. He gave three reasons. One was that he considered that the delay in filing the Cross-Claim was not accidental but was related to the orders in the proceedings decided on 3 December which were adverse to the Zepinics. Moreover, he held the proposed Cross-Claim to be embarrassing in that the Zepinics took contrary positions with respect to the continuing operation of the contract with Chateau in that and other documents. He considered the subject matter of the allegations raised in the Cross-claim to be unsuited to the principal proceedings and to the Equity Division listing arrangements.

61. [117]

    He dismissed the notice of motion filed by Vito and Milla Zepinic on 15 December: Chateau Constructions (Aust) Ltd v Milla Zepinic and Vito Zepinic [No 6], unreported, 21 May 2010. He ordered the Zepinics to pay Chateau’s costs of the proceedings.

62. [118]

    On 11 June 2010 Mr Zepinic gave notice of intention to appeal against the decision of Slattery J of 21 May 2010 (in which Slattery J refused to extend the time in which the Zepinics could file a cross-claim in Chateau Supreme Court proceedings). The evidence does not disclose any further proceedings on that notice of motion.

63. [119]

    Chateau submitted, and maintained in this Court, that the notice of motion of 15 December 2009 was a vexatious proceeding. In support of that submission, it principally relied on the manner in which Mr Zepinic had conducted the proceedings – by reliance (Chateau asserted) on fabricated documents, and by making scandalous and unsubstantiated accusations in written submissions. Chateau seeks a finding in this Court, to the extent one was not made by the primary judge, that documents put forward by Mr Zepinic were fabricated.

64. [120]

    It may be accepted that the filing of a notice of motion was an inappropriate way to seek to challenge the decision of Slattery J to extend Chateau’s caveat. It would not have been vexatious, or unreasonable, in my opinion for the Zepinics to seek to challenge that decision. The appropriate way of doing so was by application for leave to appeal. Selection by an unrepresented litigant of an inappropriate vehicle for seeking relief does not, of itself, make the proceeding vexatious. In that sense, I would not accept that the 15 December notice of motion was vexatious. However, when regard is had to the material put forward in support of the notice of motion, it is plain that the notice of motion was filed for a purpose other than that challenge, and was designed as an attempt to relitigate issues finally determined. In that sense, the 15 December notice of motion was an abuse of process, within s 6(a) of the VP Act, and therefore vexatious. The proceeding was also conducted in a way that harassed and caused unreasonable annoyance, delay and detriment, within s 6(d), in that it attempted to relitigate issues that had been finalised.

65. [121]

    On 13 March 2013 Chateau filed a notice of motion seeking an order for payment of interest on costs and disbursements. When it was listed for hearing on 3 May Mr Zepinic sought to have it adjourned, on the basis that he had not been served. Nicholas J declared himself satisfied that Mr Zepinic had received notice of the application.

66. [122]

    On 8 April 2013 Chateau received under cover of a letter dated 30 March 2013 from Mr Zepinic documents entitled “Defence”, “Statement of Cross-Claim”, and affidavits of Milla and Vito Zepinic sworn 30 March 2013. Although the documents were given the number of Chateau’s Supreme Court proceedings, it is not clear to what proceedings the defence was directed. The “cross-claim” nominated only Mr Zepinic as the cross-claimant. It is similarly unclear in relation to which proceedings of Chateau’s it purported to respond. There was no evidence that these documents had been filed. The cross-claim was in substantially the same terms as that filed on 17 December 2009 (and for the filing of which Slattery J had refused an extension of time). That is, Mr Zepinic again sought to put in issue matters concerning the building contract that had long since been decided against him.

67. [123]

    The relief claimed in the “Cross-Claim” was for payments of sums specified in eight categories, being for various heads of damage said to have arisen out of Chateau’s default in the performance of the contract; the eighth was: “(g) legal costs of this proceeding”.

68. [124]

    Chateau did not contend that the cross-claim was a vexatious proceeding, but did contend that the conduct of Mr Zepinic in preparing and serving it was vexatious. Chateau did not spell out the reasons that it did not contend that the cross-claim was a vexatious proceeding, but it may be speculated that that was because it does not appear to have been filed. I have no doubt that the conduct of Mr Zepinic in serving the document was vexing to Chateau, but I doubt that that makes it (of itself) a vexatious proceeding within the meaning of s 6 of the VP Act. That it was produced in other proceedings, however, is another matter: by s 6(d), conduct of a litigant can render a proceeding vexatious.

69. [125]

    On 2 July 2013 Mr Zepinic filed a “notice of motion” nominating, as the orders sought:

70. [126]

    He appears to have been intending to seek default judgment in relation to the orders sought in the (unfiled) cross-claim. He supported the application with an affidavit of 6 June 2013 in which he yet again made serious accusations against Chateau including of perverting the course of justice. A hearing took place in the Equity Division of the Supreme Court on 21 August and 10 September before Darke J on the latter of which neither Vito nor Milla Zepinic appeared. On 13 September 2013 Darke J dismissed the application with costs: Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 1326. He declined, however, an application by Chateau for an order that the costs be assessed on an indemnity basis. His Honour was prepared to assume in Mr Zepinic’s favour that he genuinely wished to raise the building contract issues, but without legal representation had chosen a procedurally inappropriate means for doing so. His Honour found no evidence that the (purported) cross-claim had been validly filed, and noted that, on 21 August when Mr Zepinic had appeared, that question had been raised with him, and he had been given an opportunity to bring forward material and to make submissions, but that he had not taken that opportunity.

71. [127]

    His Honour concluded, therefore, that there was no foundation for orders of the kind sought in prayers 1 and 2 of the notice of motion, nor had any basis been shown for the withdrawal of the caveat.

72. [128]

    On 30 April 2013 Mr Zepinic filed in the Equity Division of the Supreme Court a Statement of Claim naming Chateau as defendant. He claimed various specific amounts by way of damages, all said to have arisen out of the building contract. He made the same allegations as he had previously made, of defective work and breach of contract.

73. [129]

    The Statement of Claim failed to provide an address in NSW for service, as required by UCPR 4.5(1), and gave only what appears to be a residential address in London. Nor did the Statement of Claim contain the notice to defendant required by UCPR 6.13.

74. [130]

    On 4 June 2013 solicitors for Chateau wrote to Mr Zepinic at the London address he had provided. They pointed out a number of reasons why the claim could not succeed. Notwithstanding that, Chateau made an offer of compromise, which Mr Zepinic did not accept. He made a counter offer.

75. [131]

    On 2 July 2013 Mr Zepinic filed a notice of motion seeking default judgment on the Statement of Claim. On 12 July Chateau filed a notice of motion seeking summary dismissal of the Statement of Claim, or alternatively that it be struck out. Chateau sought other orders as well, including that Milla Zepinic be joined as a party, and an order for security for costs (given that Mr Zepinic asserted overseas residency).

76. [132]

    On 8 November 2013 Mr Zepinic filed a further notice of motion, seeking an order:

77. [133]

    On the same date he filed a further notice of motion seeking orders that Darke J, Robb J and Nicholas J be disqualified from further involvement in the proceedings by reason of apprehended bias.

78. [134]

    On 15 November 2013 the notice of motion came before Darke J. His Honour declined to disqualify himself: Zepinic v Chateau Constructions (Aust) Ltd [2013] NSWSC 1801. In a separate judgment, he ordered that Mr Zepinic’s notice of motion of 2 July be dismissed with costs, and that the Statement of Claim be struck out: Zepinic v Chateau Constructions (Aust) Limited (No 3) [2013] NSWSC 1804. He noted a number of deficiencies in the Statement of Claim, including those mentioned above, but declined to dismiss the proceedings. He ordered Mr Zepinic to provide security for costs.

79. [135]

    Notwithstanding that his Honour declined to dismiss the proceedings, I am satisfied that the Statement of Claim was an abuse of process. It repeated claims that had previously been rejected on a number of occasions, and it failed to comply with basic requirements of the Rules. It is particularly ironic that one of its deficiencies concerned the failure to provide an address for service, given the history recounted above. The inference that the proceeding was instituted to harass or annoy, or for some other wrongful purpose, within the meaning of s 6(b) of the VP Act is inescapable. Moreover, the notice of motion seeking default judgment was entirely inappropriate as, it must be inferred, Mr Zepinic well knew.

80. [136]

    Both the Statement of Claim and the notice of motion were vexatious proceedings within the meaning of s 6 of the VP Act.

81. [137]

    Chateau contended and maintains that the notice of motion of 2 July was a vexatious proceeding instituted and pursued without reasonable ground and was conducted in a way to harass and cause unreasonable delay or detriment.

82. [138]

    A conclusion that the 2 July 2013 notice of motion was an abuse of process and a vexatious proceeding is inescapable. Orders 1 and 2 as sought were founded on a cross-claim that had been provided to Chateau but never filed. The document expressed as a cross-claim that had been provided to Chateau essentially replicated the cross-claim that had been irregularly filed in 2010, and which Slattery J had declined to regularise. There was no discernible purpose for the relief claimed in order 3 and no prospects of success. It was an abuse of process. The notice of motion was a vexatious proceeding.

83. [139]

    On 8 October 2013 Mr Zepinic gave notice of intention to appeal against the orders of Darke J of 13 September 2013. A Notice of Appeal was filed on 13 November 2013 naming Vito and Milla Zepinic as appellants. It stated the grounds of appeal as:

84. [140]

    Mr Zepinic filed an affidavit in which he said that he had been resident in the United Kingdom since 10 March 2009 and said that he had had no legal representative or business or residential address in Australia since that date.

85. [141]

    An affidavit affirmed by Milla Zepinic was to the same effect. Written submissions under the name of Milla Zepinic addressed (at length) issues concerning the building works at the Turramurra property (which was entirely irrelevant to the issues decided by Darke J), and attacked the decision of the District Court appeal (which was also entirely irrelevant to the proposed appeal).

86. [142]

    By notice of motion filed on 24 December 2013, Chateau sought an order dismissing the appeal as incompetent (the decision of Darke J being one that requires leave to appeal). In the alternative, Chateau sought (inter alia) security for costs (presumably on the basis of Mr Zepinic’s asserted overseas residency).

87. [143]

    That prompted Mr Zepinic to file a summons seeking leave to appeal. The summons was listed for directions before the Registrar on 16 June 2014. There was no appearance by either Mr Zepinic or Milla Zepinic. Nor did they appear when the summons, and Chateau’s notice of motion, were listed before Emmett JA on 1 July 2014.

88. [144]

    On 1 July 2014 Emmett JA dismissed the notice of appeal and ordered the Zepinics to pay Chateau’s costs. Emmett JA was satisfied that relevant documents had been served on the Zepinics at the only address that had been supplied by them and that they had in fact received notice of them (at [9]): Zepinic v Chateau Constructions (Australia) Ltd [2014] NSWCA 248.

89. [145]

    Chateau contended and maintains that the notice of appeal was a vexatious proceeding within the meaning of s 6 of the VP Act.

90. [146]

    The reliance by the Zepinics on an assertion (which was rejected) that they had not been served, and their failure to appear on two occasions, establishes that the proceeding constituted by the notice of appeal was instituted to harass or annoy, or to cause delay or detriment, and was instituted without reasonable ground (within s 6(a), (b) and (c) of the VP Act). It was a vexatious proceeding.

91. [147]

    On 30 April 2014 Vito Zepinic filed a summons seeking leave to appeal against the orders of Darke J of 13 September 2013. That was the decision against which he had, on 13 November 2013, sought leave to appeal and had filed, irregularly, a notice of appeal which was dismissed by Emmett JA in the proceedings previously mentioned. It, too, came before Emmett JA on 1 July and was likewise dismissed.

92. [148]

    Chateau contended and maintains that the proceeding was vexatious. For the reasons set out above in relation to the 2013 appeal, I accept that it was a vexatious proceeding.

93. [149]

    What came to be called ”the 2015 Court of Appeal proceedings” arose out of orders made by Rein J on an application brought by Chateau. On 12 December 2014 his Honour made orders that had the effect of adding certain “money orders” made by the court to the charge on the Turramurra property, and therefore included in the amounts due on distribution of the proceeds of sale of that property due to Chateau. The judgment of Rein J shows that neither of the Zepinics appeared. His Honour was satisfied that they had been appropriately served.

94. [150]

    On 6 November 2015 Vito Zepinic filed a summons seeking leave to appeal against those orders. He stated that the appeal was brought “under r 11A of the UCPR 2005 and r 51.10(2) of the UCPR 2005”. He filed a lengthy summary of argument in which he again sought to raise issues concerning overseas service.

95. [151]

    By notice of motion filed on 5 February 2016 Chateau sought summary dismissal of the summons seeking leave to appeal, or, alternatively, an order for security for costs.

96. [152]

    On 22 March 2016, this Court (McColl and Leeming JJA) dismissed the summons as incompetent: Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 50. The summons was incompetent because it did not give an address in Australia for service. The reasons given by their Honours are important in the present consideration. They said:

97. [153]

    Their Honours went on to say, although in a passage which their Honours said was not necessary to the decision:

98. [154]

    The reasons and observations of McColl and Leeming JJA establish to my satisfaction that the summons seeking leave to appeal filed on 6 November 2015 was a vexatious proceeding, as, at least an abuse of process.

99. [155]

    On 31 March 2016 Nina Zepinic as the first plaintiff and Vito Zepinic as the second plaintiff filed in the Equity Division of the Supreme Court a statement of claim. The relief claimed was “to invalidate” the contract for sale of the Turramurra property (a contract which had been entered by the trustee appointed by the Supreme Court on 8 April 2010), for vacant possession of the property (the contract had long since been completed and the purchaser was in possession), and for damages representing loss of rental income for the property. Under the heading “Pleading and Particulars”, the statement of claim contained what appears to be a statement by Nina Zepinic in which she asserted that she was the owner of the Turramurra property. There followed a lengthy account, purportedly of the dealings of Vito Zepinic and Milla Zepinic, and Chateau and an outline of complaints about the work Chateau had done. On the same day Nina Zepinic filed an affidavit that made similar assertions. On 15 April 2016 Vito Zepinic filed an affidavit in which he repeated the assertions that Nina Zepinic was the owner of the property. He annexed to his affidavit a copy of the letter directed to Slattery J in December 2009, including the attachment which purported to confirm that Nina Zepinic was the owner of the Turramurra property, it having been gifted to her in 2004. He asserted that the trustee had unlawfully taken possession of the property. (This was plainly without foundation; the trustee was appointed pursuant to an order of the Supreme Court). He also made complaints about the workmanship of Chateau on the building work.

100. [156]

     On 3 June 2016 Chateau filed and served a notice of motion seeking summary dismissal of the statement of claim. On 8 June Nina and Vito Zepinic filed a notice of motion for “Default Judgment for Liquidated Claim”. The orders they sought, however, were entirely unsuited to default judgment. They again included an order setting aside the contract for sale of the Turramurra property, and orders for vacation of the property – there is no indication that the purchaser was given notice of this extraordinary application. They also sought orders for the payment of various sums of money related at least in part their complaints about Chateau’s performance of the contract. The Zepinics filed lengthy written submissions in relation to both notices of motion.

101. [157]

     Both issues came before Pembroke J on 5 September 2016. His Honour noted the allegation that Nina Zepinic was the owner of the Turramurra property. He referred to evidence that demonstrated conclusively that Vito and Milla Zepinic, not Nina Zepinic, were the owners of the property. He summarily dismissed the statement of claim and the notice of motion: Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWSC 1254.

102. [158]

     Chateau contended, and maintains, that the conduct of both Nina and Vito Zepinic in instituting that the proceedings without any proper basis was an abuse of process and the proceeding was vexatious. It further contends that the conduct of Vito and Nina Zepinic in resisting Chateau’s application for summary judgment was an abuse of process. I would accept the former proposition and reject the latter.

103. [159]

     The assertions that Nina Zepinic was the owner of the Turramurra property was inconsistent with, and directly contradicted, the position that had been adopted over the previous 7 years. The complaints about the building work were an attempt to avoid the consequences of the CTTT decision, the dismissal of the appeal to the District Court, and the refusal of leave to appeal to this Court.

104. [160]

     The statement of claim was an abuse of process and vexatious within s 6(a) of the VP Act.

105. [161]

     I do not, however, accept that the conduct of the Zepinics in resisting Chateau’s notice of motion rendered that proceeding vexatious.

106. [162]

     On 19 February 2016 Mr Zepinic filed a notice of motion in the appeal proceedings (2015/326487). Included in the notice of motion were assertions by him that he had attended to review the Supreme Court file (2009/290598) to find that most of the documents filed by the Zepinics had been removed and marked, and that contained in the file was a sealed folder classified as confidential, to be opened (only) with the court’s permission. He sought orders for unlimited access to the file.

107. [163]

     Chateau adduced evidence to the effect that it had sought to reach a resolution of the issue with Mr Zepinic, but that he was resistant to any proposed agreement. Eventually, after the notice of motion had been remitted to the Equity Division, Darke J made court orders which had the effect of releasing to Mr Zepinic the material previously marked as confidential.

108. [164]

     Before the primary judge Chateau submitted:

109. [165]

     Chateau does not appear to maintain that submission in this Court. It is unsustainable.

110. [166]

     On 6 November 2015 Vito and Milla Zepinic filed, out of time, an application for special leave to appeal to the High Court. The application does not specify with any clarity the orders against which they sought leave to appeal. It identified a decision of Emmett JA “entered on 7 November 2014” as the orders the subject of the application. (On 7 November 2014 Emmett JA made orders against Vito Zepinic, and, in one case against Vito and Milla Zepinic for the payment of gross sum costs: Zepinic Chateau Constructions (Aust) Ltd (No 4) [2014] NSWCA 383). The application also referred to “judgment/orders” entered on 4 July 2014 and 10 November 2014 as orders sought to be set aside. It stated that the application was filed “pursuant to s 11A.12 of the UCPR 2005.”

111. [167]

     What was specified as “the grounds” of the proposed appeal again began with the assertion that “the applicant” left Australia on 10 March 2009 and had since been resident of the United Kingdom. Mr Zepinic filed an affidavit in the proceeding, in which he again reiterated that he had been resident in the United Kingdom since 10 March 2009 and that he had never been “proper served” with documents by Chateau. The proposed notice of appeal that accompanied the application focused on the asserted non-service of “documents used during court proceedings”.

112. [168]

     On 9 March 2016 the High Court refused to extend the time for filing the application on the basis that no arguable ground of appeal had been advanced and that the appeal would enjoy no prospect of success: Vito Zepinic & Anor v Chateau Constructions (Aust) Ltd [2016] HCASL 12.

113. [169]

     Chateau contended, and maintains, that the application to the High Court was vexatious within the meaning of s 6(a)-(c) and (d).

114. [170]

     The mere fact that special leave to appeal is refused does not establish that the proceeding was vexatious. It is necessary to look further. Examination of the application reveals that it was based on reiteration of the assertion of fact concerning service of documents by Chateau previously made and frequently rejected. It appears to make this assertion even in relation to the CTTT proceedings, in which the Zepinics played an active part. There is no clear identification of the documents the Zepinics claimed had not been served, and no identification of the issues said to be appropriate for determination by the High Court.

115. [171]

     The manner in which the application was made was clearly an abuse of the process of the High Court and it was pursued without any reasonable ground. It was a vexatious proceeding.

116. [172]

     On 31 March 2016 Vito Zepinic filed a second application for special leave to appeal to the High Court. He identified the “whole judgment of the Court of Appeal given on 22 March 2016” as the judgment against which special leave to appeal was sought. This was the judgment in which McColl and Leeming JJA had dismissed Mr Zepinic’s summons seeking leave to appeal against the decision of Rein J on 12 December 2014.

117. [173]

     He said that the application was made pursuant to “Part 41 of the High Court Rules 2004 and Part 11A of the UCPR 2005.” In the stated grounds for appeal, he yet again stated that he had left Australia on 10 March 2009 and had since then remained a resident of the United Kingdom, and maintained that he had not been served with documents by Chateau. He gave a lengthy account of what he asserted to be the history of proceedings between himself and Chateau, but identified no arguable error in the judgment against which he sought leave to appeal.

118. [174]

     On 17 June 2016 the High Court dismissed the application.

119. [175]

     It can be seen that in this application Mr Zepinic persisted in his attempts to assert that Chateau had failed to serve relevant documents. This was a matter he had raised repeatedly, on prior occasions, and that had been decided against him. The application to the High Court was an abuse of process and a vexatious proceeding.

120. [176]

     On 8 September 2016 Vito Zepinic filed in this Court a notice of intention to appeal and, on 5 October, a summons seeking leave to appeal, against another decision of Pembroke J of 5 September 2016. (Pembroke J gave two judgments of that date, only one of which was given a medium neutral citation number). Before Pembroke J was a notice of motion filed by Vito Zepinic on 13 March 2016, which, Pembroke J said, set out “a collection of different orders“ all of which seek to re-agitate the issues which were originally resolved in [the CTTT] and were the subject of numerous appeals to this Court ….” He said that he was satisfied that there was no factual basis, and in particular no legal basis, for the orders sought by Mr Zepinic. He dismissed the notice of motion and ordered Mr Zepinic to pay the costs. He concluded by directing Chateau, if so advised, to file a notice of motion within 14 days seeking orders under the VP Act against the Zepinics “and any other related party who it is advised to join.”

121. [177]

     In support of the summons, Mr Zepinic filed a voluminous White Book. The White Book contains a lengthy statement of “relevant facts” which covers many aspects of the history of the proceedings, but has little apparent relevance to matters that were before Pembroke J. Mr Zepinic appears to have attempted to identify the errors on which he sought to rely in the following paragraphs:

122. [178]

     He then went on to make further complaint about his departure from Australia, his residence in the United Kingdom, and what he said was the failure to serve documents upon him.

123. [179]

     In a draft notice of appeal that appeared in the White Book Mr Zepinic identified the proposed appeal grounds as:

124. [180]

     Mr Zepinic also filed a second summons, (proceedings 2016/270043), seeking leave to appeal against the decision of Pembroke J of 5 September 2016. The summons named Nina Zepinic as first applicant, Vito Zepinic as second applicant. The summons was heard by this Court (Macfarlan and Meagher JJA) on 8 December 2016, together with the second summons seeking leave to appeal from different orders made by Pembroke J, also on 5 September 2016. The court noted that the order subject to the proposed appeal was made in proceedings initiated by Mr Zepinic and therefore questions of service had no bearing.

125. [181]

     In those circumstances there was no basis for the summons seeking leave to appeal, and no basis for asserting error.

126. [182]

     On 19 December 2016 the Court dismissed both summonses: Zepinic v Chateau Constructions (Aust) Ltd; Zepinic v Chateau Constructions (Aust) Ltd [2016] NSWCA 361. With respect to the summons in proceedings 2016/270038, the court referred to the proposed grounds of appeal, neither of which, it held, had any substance. Their Honours decided that the material provided gave no reason to doubt that the summons was properly served. They rejected the contention that there was relevant failure on the part of Chateau to serve Mr Zepinic in the United Kingdom.

127. [183]

     In the draft notice of appeal the second ground is obscure, but the court noted that it was sought to be supported by an argument that Ms Nina Zepinic was the owner of the Turramurra property at all relevant times, and that the sale should therefore be invalidated. The court noted that Pembroke J had rejected that argument, on the basis that the evidence indicated to the contrary. It concluded that not only did Mr Zepinic not identify any flaw in Pembroke J’s reasoning, but that, in fact, it was clearly correct.

128. [184]

     The summons filed in proceeding 2016/270038 was an abuse of process within s 6(a) of the VP Act and vexatious.

129. [185]

     On 21 December 2016 Vito Zepinic filed an application for special leave to appeal to the High Court. The orders against which he sought leave to appeal were those of this Court of 19 December 2016. These were the orders of Macfarlan and Meagher JJA, refusing leave to appeal against the orders of Pembroke J of 5 September 2016.

130. [186]

     Mr Zepinic commenced the application by saying:

131. [187]

     This statement was directly contrary to the assertions he had made in the statement attached to the letter addressed to Slattery J in 2009 and repeated on subsequent occasions to the effect that he and Milla Zepinic had gifted the Turramurra property to Nina Zepinic.

132. [188]

     In the application he went on to complain of Chateau’s performance of the building work at the Turramurra property, to repeat that relevant documents had not been served, or had not been served in accordance with what he claimed to be the required procedure, and to allege “irregularities and fraud” in court proceedings resulting in the sale of the Turramurra property.

133. [189]

     The High Court refused special leave, saying:

134. [190]

     The application was without any foundation and was an abuse of process.

135. [191]

     What I have set out above is by no means a complete catalogue of the proceedings instituted, principally by Vito Zepinic, but also by Milla Zepinic, and, to a lesser extent, by Nina Zepinic. I have found that 12 separate proceedings, each instituted by Vito Zepinic, alone or in conjunction with Milla Zepinic (or, in one case, with Nina Zepinic), were vexatious. That is sufficient to qualify as “frequently” as required by s 8(1)(a) of the VP Act. It is therefore unnecessary to deal with other applications.

136. [192]

     Throughout its submissions, in relation to many of the proceedings, Chateau placed considerable emphasis on the manner in which the Zepinics had pleaded and pursued their various applications. Those pleadings, and the submissions filed in their support, often included serious allegations against Chateau, including of fraud, perjury and misleading the court. Chateau argued that these were “grave and scandalous” allegations that of themselves rendered the proceedings in which they were made vexatious. I have not found it necessary to deal with this argument. The very nature of the pleadings, and the repetitiveness of the same allegations, even in the face of their rejection by the courts, is sufficient to establish vexatiousness.

137. [193]

     A party to litigation is entitled to make serious allegations against another party, but that entitlement is governed by procedural rules that require a degree of circumspection and that the allegations be based on available evidence capable of supporting them. The nature of the present application is such that it has not been appropriate to delve into any available basis for the repeated allegations. I note, however, that Leeming JA said in 2014, that there was no support evident for the allegations.

138. [194]

     Notwithstanding the failure of the primary judge to undertake the required exercise, the above analysis shows that the orders were entirely justified. Vito Zepinic’s appeal should be dismissed.

139. [195]

     Nina Zepinic became a party to the proceedings only with the filing of the statement of claim in 2016 (in which she and Vito Zepinic sought orders “invalidating” the contract for sale of the Turramurra property) and the subsequent application for default judgment. (Contrary to the submissions of Chateau, she is not shown as an applicant on any of the High Court proceedings mentioned). Each of the two proceedings to which she was a party is a particularly egregious example of a vexatious proceeding, being misconceived and, further, based on a factual proposition (that she was the owner of the Turramurra property) that was contrary to the approach taken by Vito and Milla Zepinic throughout the previous proceedings.

140. [196]

     The orders made by Pembroke J specified the proceedings that were to be stayed, and effectively prohibited the relevant members of the Zepinic family from taking any further step in any of those proceedings. The proceedings in the Supreme Court were those numbered 2009/290598, 2013/132492, 2016/97515. All are related to the original dispute over the construction contract with Chateau. The various individual proceedings I have outlined above were proceedings taken in connection with one or other of those numbered proceedings. It is appropriate therefore to maintain the orders made by Pembroke J.

141. [197]

     Instituting two proceedings would not, ordinarily, establish the frequency that is necessary for an order under s 8(7) of the VP Act where s 8(1)(a) is the foundation for the order. Section 8(1) states the foundation or premise that must be established before such an order can be made. The premise stated in s 8(1)(a) is that the person against whom the order is sought has “frequently” instituted or conducted vexatious proceedings in Australia. Nina Zepinic does not come within that description. However, s 8(1)(b) is directed to a person who acts in concert with another person who either is already subject to a vexatious proceedings order (which is not this case) or:

142. [198]

     Nina Zepinic’s proceedings were instituted by her acting in concert with Vito Zepinic, who, as I have said above, comes within paragraph (a). Nina Zepinic therefore clearly comes within s 8(1)(b). There is no requirement of frequency in s 8(1)(b).

143. [199]

     The evidence justifies the orders that were made against Nina Zepinic. Her appeal should be dismissed.

144. [200]

     I would therefore propose that each appeal be dismissed with costs.