DCL Constructions Pty Limited v Di Lizio - [2007] NSWSC 1180

CITATION: DCL Constructions Pty Limited v Di Lizio [2007] NSWSC 1180

HEARING DATE(S): 10 October 2007

JUDGMENT DATE :
19 October 2007

JUDGMENT OF: Harrison J

DECISION: Plaintiff's notice of motion dismissed with costs

CATCHWORDS: APPEAL – Uniform Civil Procedure Rules 50.3(1)(c) and 50.12(1)(c) - appeal from Associate Justice – whether wrong principle, extraneous or irrelevant matters or mistake of fact – no error found – appeal dismissed

LEGISLATION CITED: Legal Profession Act 1987 - ss 184(4), 208L, 208M
Uniform Civil Procedure Rules 2005 - rr 49.4, 50.3(1)(c), 50.12(1)(c)

CASES CITED: Danny Kidron & Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 572
Groth v Audet (2006) 65 NSWLR 388
House v The King (1936) 55 CLR 499
Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563
Maitland v Nationwide News Pty Ltd [2004] NSWCA 155
McAndrew v Wyoming Nursing Home (Sperling J, 5 December 1997, unreported)
McGarva v Boyd [1999] NSWSC 1149
Morrison v Judd (Court of Appeal, 10 October 1995, unreported)
Morton v Jools (1992) Aust Tort Reports 81-164
Muriniti v Lyons [2004] NSWSC 135
Wentworth v Rogers (2006) 66 NSWLR 474
Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497

PARTIES: DCL Constructions Pty Ltd (Plaintiff)
Mario Di Lizio t/as Di Lizio & Associates (Defendant)

FILE NUMBER(S): SC 14867 of 2006

COUNSEL: M J Jenkins (Plaintiff)
C P Locke (Defendant)

SOLICITORS: Carroll & O'Dea (Plaintiff)
Oliveri Attorneys (Defendant)

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): SC 14867/2006

LOWER COURT JUDICIAL OFFICER : Harrison AsJ

LOWER COURT DATE OF DECISION: 27 June 2007

LOWER COURT MEDIUM NEUTRAL CITATION: DCL Constructions v Di Lizio [2007] NSWSC 653

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

19 October 2007

14867 of 2006 DCL Constructions Pty Ltd v Mario Di Lizio t/as Di Lizio & Associates
JUDGMENT

1 HARRISON J: By its summons filed 5 October 2006 the plaintiff sought orders, inter alia, pursuant to rules 50.3(1)(c) and 50.12(1)(c) respectively of the Uniform Civil Procedure Rules 2005 for an extension of time to appeal against the decision of Christopher Gerard O’Brien made on 11 May 2005 (“the decision”) in accordance with s 208L of the Legal Profession Act 1987 (“the Act”), and an extension of time for leave to appeal against a determination made by him on the same date (“the determination”) in accordance with s 208M of the Act.

2 The matter came before Associate Justice Harrison on 18 June 2007 and her Honour delivered judgment on 27 June 2007. By agreement between the parties, her Honour was only asked to deal with these two matters. Her Honour refused both the application for an extension of time to appeal and for an extension of time for leave to appeal. Her Honour otherwise dismissed the summons with costs.

3 By its notice of motion filed 25 July 2007, the plaintiff appealed against her Honour’s decision pursuant to rule 49.4 UCPR. The appeal is to be determined having…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 1180
Decision Date: 19 October 2007

CaseChat Overview and Summary

DCL Constructions Pty Limited has appealed against a decision made by an Associate Justice in the Supreme Court of New South Wales, where Di Lizio was the respondent. The appeal pertains to a construction dispute. The Associate Justice had ruled in favour of Di Lizio, awarding him damages for breach of contract and for the costs of rectifying defective work. DCL Constructions contests the correctness of the principles applied by the Associate Justice and argues that certain extraneous or irrelevant matters were considered or that there was a mistake of fact. The appeal seeks to overturn the decision or to reduce the damages awarded.

The legal issues before the court were whether the Associate Justice had erred in applying the wrong principle, whether extraneous or irrelevant matters had been considered, or whether there had been a mistake of fact. DCL Constructions contended that the Associate Justice had not properly considered the contract terms and the scope of the defects claimed by Di Lizio. The court was required to review the reasoning of the Associate Justice to determine if there was any error in the judgment that warranted setting it aside or varying the orders made.

After a detailed review of the evidence and arguments presented, the court found no merit in the appeal. The reasoning of the Associate Justice was sound, and the decision was not based on any wrong principles, extraneous matters, or factual errors. The Associate Justice had correctly interpreted the contract and assessed the evidence regarding the defects. The court was satisfied that the judgment was fair and just, based on the evidence before the Associate Justice. Consequently, the appeal was dismissed, and the original decision stood.

No further orders were made as the appeal was dismissed outright. The decision of the Associate Justice remains binding, and Di Lizio is entitled to the damages and costs awarded, as per the original ruling.

Orders