Zepinic v Chateau Constructions (Australia) Ltd [2014] NSWCA 248

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zepinic v Chateau Constructions (Australia) Ltd [2014] NSWCA 248 Hearing dates: 1/07/2014 Decision date: 01 July 2014 Before: Emmett JA Decision: In proceeding 2013/302149: 1 The Notice of Appeal filed 13 November 2013 is dismissed. 2 The Appellants are to pay the Respondent's costs of the appeal including the costs of the Respondent's Notice of Motion filed on 24 December 2013, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3 Direct that the Respondent serve upon the Appellants no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 30 June 2014 (filed in this proceeding and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Appellants that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Appellants to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Appellants of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 posting by ordinary airmail post addressed to Mrs Milla Zepinic, [address removed for publication] and 4.3 sending by email to [address removed for publication], and [address removed for publication]. 5 The Appellants are to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 30 June 2014 by 15 July 2014. In proceeding 2013/345739: 1 The Notice of Appeal filed 13 February 2014 is dismissed. 2 The Appellant is to pay the Respondent's costs of the appeal including the costs of the Respondent's Amended Notice of Motion filed on 5 May 2014, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3. Direct that the Respondent serve upon the Appellant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 27 June 2014 (filed in this proceeding and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Appellant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Appellant to file and serve any affidavits or submissions pursuant to Order 5 and that the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Appellant of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 sending by email to [address removed for publication] and [address removed for publication]. 5 The Appellant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 27 June 2014 by 15 July 2014. In proceeding 2014/130563: 1 The Summons filed 30 April 2014 is dismissed. 2 The Applicant is to pay the Respondent's costs of the Summons, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3 Direct that the Respondent serve upon the Applicant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 30 June 2014 (filed in proceeding No. CA 2013/302149 and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Applicant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Applicant to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Applicant of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 sending by email to [address removed for publication] and [address removed for publication]. 5 The Applicant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 30 June 2014 by 15 July 2014. In proceeding 2014/130569: 1 The Summons filed 30 April 2014 is dismissed. 2 The Applicant is to pay the Respondent's costs of the Summons, to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the gross sum to be determined on the papers. 3 Direct that the Respondent serve upon the Applicant no later than 5:00 pm Eastern Australian Standard Time on 2 July 2014: 3.1 the affidavit of Andrew Loel sworn on 27 June 2014 (filed in proceeding No. CA 2013/345739 and concerning quantification of costs); 3.2 a copy of these orders; 3.3 a letter notifying the Applicant that the Court will proceed to determine the gross sum for costs pursuant to Order 2 above, 14 days after the time limited for the Applicant to file and serve any affidavits or submissions pursuant to Order 5 below and the Respondent has submitted the costs should be assessed on an indemnity basis. 4 Service on the Applicant of the documents referred to in Order 3 above shall be deemed sufficient if effected by: 4.1 posting by ordinary airmail post addressed to Vito Zepinic, [address removed for publication] and 4.2 sending by email to [address removed for publication] and [address removed for publication]. 5 The Applicant is to file and serve any affidavits or submissions in answer to the Respondent's claim for lump sum assessment of costs in the amounts deposed to in Andrew Loel's affidavit of 27 June 2014 by 15 July 2014. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - interlocutory applications - notices of appeal filed out of time - summary dismissal sought for incompetence - non-compliance with the Uniform Civil Procedure Rules 2005 (NSW) by not specifying an address for service in NSW - dismissal for non-attendance under UCPR r 13.6 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 4.2, 4.5, 13.6 Cases Cited: Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2009] NSWSC 1373 Chateau Constructions (Aust) Ltd v Zepinic (No 5) [2010] NSWSC 265 Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 909 Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326 Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804 Category: Interlocutory applications Parties: Vito Zepinic (Applicant) Chateau Constructions (Aust) Ltd (Respondent) Representation: Counsel: No appearance (Applicant) D J Fagan SC with B Ilovski (Respondent) Solicitors: No appearance (Applicant) Toomey Pegg Lawyers (Respondent) File Number(s): 2013/302149; 2013/345739; 2014/130563; 2014/130569 Publication restriction: Addresses removed for publication Decision under appeal Citation: Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326; Chateau Constructions (Aust) Ltd v Zepinic (No 3) [2013] NSWSC 1804 Before: Darke J File Number(s): 2009/290598; 2013/132492