Proietti v Proietti [2025] NSWCA 11

Proietti v Proietti [2025] NSWCA 11

The application to set aside the VPO was dismissed because there was no material change of circumstances or new material justifying its variation or setting aside, the application substantially repeated arguments already determined and rejected, and attempts to use the procedure as a de facto appeal are impermissible. The conduct continued to be vexatious and an abuse of process, warranting indemnity costs from the Applicant’s share of proceeds.

Parties
Applicant: Philip Proietti; First Respondent: Peter Proietti; Second Respondent: Ian Colwell Miller and Peter Joseph Dominello as court appointed trustees
Jurisdiction
Australia
Judgment Date
13 February 2025
Procedural Posture
Notice of Motion to Set Aside Vexatious Proceedings Order / Decision on Application
Outcome
Application dismissed
Legal Topics
Vexatious Proceedings, Setting Aside Orders, Abuse of Process, Procedural Fairness, Costs
Civil Procedure Vexatious Proceedings Setting Aside Orders Abuse of Process Procedural Fairness Costs

Case Brief

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Parties

Philip Proietti

Applicant

Peter Proietti

First Respondent

Ian Colwell Miller and Peter Joseph Dominello as court appointed trustees

Second Respondent

Procedural Posture

Notice of Motion to Set Aside Vexatious Proceedings Order / Decision on Application

Legal Issues

  1. 1 Whether the vexatious proceedings order (VPO) should be set aside under s 9(2)(a) of the Vexatious Proceedings Act 2008 (NSW) and/or s 63 of the Civil Procedure Act 2005 (NSW)
  2. 2 Whether a material change of circumstances or new material justified varying or setting aside the order
  3. 3 Whether the application constituted a de facto appeal

Ratio Decidendi

The application to set aside the VPO was dismissed because there was no material change of circumstances or new material justifying its variation or setting aside, the application substantially repeated arguments already determined and rejected, and attempts to use the procedure as a de facto appeal are impermissible. The conduct continued to be vexatious and an abuse of process, warranting indemnity costs from the Applicant’s share of proceeds.

Court Disposition

Application dismissed

Orders

  • Application to set aside the Vexatious Proceedings Order issued on 8 March 2024 dismissed with costs.
  • Costs to be paid from the Applicant's share of the net proceeds of sale of the property at 36 Mawarra Crescent, Marsfield NSW, on an indemnity basis.