Application of Vito Zepinic (No 3) [2020] NSWSC 761

Supreme Court New South Wales

Medium Neutral Citation: Application of Vito Zepinic (No 3) [2020] NSWSC 761 Hearing dates: On the papers; written submissions 12 June 2020 (applicant) Date of orders: 17 June 2020 Decision date: 17 June 2020 Jurisdiction: Equity Before: Kunc J Decision: Orders made to give effect to Court's earlier judgment; applicant's further notice of motion dismissed Catchwords: JUDGMENTS AND ORDERS – Orders giving effect to reasons – No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Vexatious Proceedings Act 2008 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Application of Vito Zepinic [2020] NSWSC 269 Application of Vito Zepinic (No 2) [2020] NSWSC 693 Category: Procedural and other rulings Parties: Vitomir Zepinic (Plaintiff)

Nicholas Craig Malanos (Defendant)

Chateau Constructions (Aust) Ltd (Third Party) Representation: Counsel:

V Zepinic (in person)

D G Healey and D Blazer (Defendant)

A Loel (Solicitor) (Third Party)

Solicitors:

Bridges Lawyers (Defendant) Toomey Pegg Lawyers (Third Party) File Number(s): 2009/290598; 2017/353311 Publication restriction: No

Judgment 1. The Court delivered its principal judgment in these proceedings on 19 March 2020: Application of Vito Zepinic [2020] NSWSC 269 (the "Principal Judgment"). The Court delivered a further judgment on 3 June 2020 dealing with motions filed by Mr Zepinic and Mr Malanos and consequential issues including the costs of the entire proceedings: Application of Vito Zepinic (No 2) [2020] NSWSC 693 (the "Further Judgment"). This judgment assumes familiarity, and should be read with, the Principal Judgment and the Further Judgment. Defined terms in those judgments have the same meaning in these reasons. 2. At the conclusion of delivering the Further Judgment ex tempore, I made these directions: "(1) The first defendant is to provide by email to my associate and to Mr Zepinic a form of short minutes of order to give effect to the Court's reasons on or before 5 June 2020. (2) The plaintiff Mr Zepinic is to provide any alternative form of order, together with brief submissions in support of any such alternative form of order, on or before 19 June 2020." 1. When I made those directions, I stressed to Mr Zepinic that his entitlement to make submissions in relation to the form of orders necessary to give effect to the Further Judgment was exactly that. It was an entitlement confined to the extent of disagreement (if any) of Mr Zepinic with the short minutes of order to be provided by Mr Malanos as properly giving effect to the Further Judgment. It was not an opportunity or invitation for him (Mr Zepinic) to reargue the matters which had been determined in either or both of the Principal Judgment or the Further Judgment. Mr Zepinic indicated that he understood that. 2. In accordance with the directions I had made, on 5 June 2020 Mr Malanos' solicitors provided to my Associate draft short minutes of order in both these proceedings and the 2009 "original proceedings" (see paragraph [35] of the Further Judgment) to give effect to the Further Judgment. With one minor exception which it is not necessary to record, but which my Associate notified to the parties, I was and remain satisfied that making the orders proposed on behalf of Mr Malanos will properly give effect to the Further Judgment. 3. In purported compliance with order 2 (set out in paragraph [2] above), on 12 June 2020 Mr Zepinic e-filed a notice of motion in these proceedings dated that day (the "12 June Motion"), together with a 12 page document of the same date entitled "Plaintiff's submissions on defendant's short minutes of order" (the "12 June Submissions"). 4. The relief sought in the 12 June Motion is: 1. Pursuant to r 36.15(1) of the UCPR 2005, to set aside judgment delivered on 3 June 2020 (Vito Zepinic v Nicholas Craig Malanos (No 2) [2020] NSWSC 693). 2. Dismiss the defendant's Short Minutes of Order (2009/290598). 3. Dismiss the defendant's Short Minutes of Order (2017/353311). 4. Affirm prayers 1-6 sought in the plaintiff's motion filed in Court on 7 April 2020. 1. It is apparent from his latest filings that Mr Zepinic has not understood, or has chosen to ignore, what I said to him on the last occasion concerning the scope of what he was entitled to do under the orders I made after delivering the Further Judgment. The 12 June Submissions rehearse, yet again, many of the arguments which were considered at length and rejected in either the Principal Judgment or the Further Judgment. It appears that, again, Mr Zepinic wishes to relitigate matters which have been decided against him on more than one occasion. 2. I would not normally have published further reasons upon making the orders to give effect to the Further Judgment. However, the filing of the 12 June Motion has necessitated these further reasons to explain, albeit in a shorthand way, why I will also make orders dismissing the 12 June Motion. 3. At the conclusion of these reasons I will make orders in substance identical to those proposed by Mr Malanos to give effect to the Further Judgment. 4. Insofar as the 12 June Motion is concerned, I propose to dismiss that motion for precisely the same reasons that I will dismiss the Zepinic Motion considered in the Further Judgment, with one minor exception. Subject to that exception, the reasons why I am dismissing the 12 June Motion are the same as those set out in relation to the Zepinic Motion in paragraphs [13] to [33] of the Further Judgment, mutatis mutandis. 5. The minor exception is that because the 12 June Motion was e-filed on that date, although the motion is stayed pursuant to s13(1) of the Act, a period of 28 days since the motion was filed has not yet elapsed so that the motion is not yet taken to be dismissed pursuant to s 13(3) of the Act. It is for that reason that I will make an order under s 13(4)(b) of the Act dismissing the motion before the expiry of the period of 28 days referred to in s 13(3) of the Act. 6. To give effect to the Further Judgment in relation to the 2009 proceedings, the Court orders in those proceedings: 1. The following amounts ordered by the Court in favour of Nicholas Craig Malanos (the "Trustee") in proceedings number 2017/353311 (the "Leave Proceedings") with respect to the Trustee's remuneration and expenses and legal costs and disbursements be paid, to the extent available, from the monies held in Court in these proceedings: 1. the amount of $62,678.40 in respect of the Trustee's remuneration; 2. the amount of $295,194.67, in respect of the Trustee's legal fees on a gross sum basis; and 3. the amount of $25,340.00 in respect of the Trustee's notice of motion dated 27 April 2020. 1. Order 1 does not cap or otherwise limit the amount which the Trustee may recover against the Defendants in the event that the funds in Court are insufficient to satisfy the orders for remuneration and expenses and legal costs and disbursements made in the Leave Proceedings. 2. Costs of the Trustee's motion filed 30 April 2020 be paid by Mr Vitomir Zepinic, the second defendant, on an indemnity basis. 1. To give effect to the Further Judgment in relation to the present proceedings, the Court orders in these proceedings: 1. Declare that, pursuant to section 13(2) of the Vexatious Proceedings Act 2008 (NSW) (the "VP Act"), the Notice of Motion filed by the Plaintiff, Vito Zepinic (also known as Vitomir Zepinic) ("Mr Zepinic") on 7 April 2020 (the "Zepinic NOM") has been stayed until it is dismissed (or taken to be dismissed) under section 13 of the VP Act. 2. Declare that, pursuant to section 13(3) of the VP Act, the Zepinic NOM was dismissed on 5 May 2020. 3. Mr Zepinic pay the Defendant, Nicholas Craig Malanos' ("Mr Malanos") costs of and incidental to the Zepinic NOM on an indemnity basis. 4. The remuneration of Mr Malanos, as trustee of the sale of the property located at XXX, Turramurra for the period 5 December 2017 to 21 April 2020 be approved in the sum of $62,678.40 (inc GST). 5. Mr Malanos' legal costs of the proceedings be paid on an indemnity basis. 6. Pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the "Act"), Mr Malanos' legal costs of the proceedings be paid on a gross sum basis in the amount of $295,194.67. 7. Pursuant to s 101(1) and s 101(4) of the Act, Mr Zepinic pay interest on any amount paid by Mr Malanos, or on his behalf, as costs or disbursements or on account of costs and disbursements on the amount of costs and disbursements ("Costs") ordered to be paid as a gross sum with interest calculated from the earlier of the date of payment of those Costs or the date of payment on account for those Costs and continuing until such time as payment or recoupment of those Costs and interest has been made, such interest being calculated in accordance with the rates under rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW). 8. In addition to the costs in Order 6, Mr Malanos' legal costs of his Notice of Motion dated 27 April 2020 be fixed in the sum of $25,340.00. 1. Finally, in relation to the 12 June Motion the Court orders in these proceedings: 1. Declare that, pursuant to s 13(4)(a) of the VP Act, the notice of motion filed by Vito Zepinic on 12 June 2020 (the "12 June Zepinic NOM") is a proceeding to which sub-sections 13(2) and (3) of the VP Act apply. 2. Declare that, pursuant to s 13(2) of the VP Act, the 12 June Zepinic NOM has been stayed until it is dismissed (or taken to be dismissed) under s 13 of the VP Act. 3. Order that the 12 June Zepinic NOM be dismissed pursuant to s 13(4)(b) of the VP Act. 4. Vacate the listing of the 12 June Zepinic NOM fixed for 9 July 2020.