DCL Constructions v Di Lizio - [2007] NSWSC 653

CITATION: DCL Constructions v Di Lizio [2007] NSWSC 653

HEARING DATE(S): 18 June 2007

JUDGMENT DATE :
27 June 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The application seeking an extension of time to appeal is refused; (2) Leave to appeal is refused; (3) The summons filed 5 October 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Extension of time to appeal decision of Costs Assessor

LEGISLATION CITED: Legal Profession Act 1987 - ss 208L & M
Uniform Civil Procedure Rules 2005 - Parts 50.3, 50.12

CASES CITED: Graham v Aluma-Lite Pty Ltd (NSWCA, 25 March 1997, unreported)
Hall Chadwick v Doyle [2006] NSWSC 1195
Katingal P/L & Anor v Amor & Ors [2004] NSWSC 36
Muriniti v Lyons [2004] NSWSC 135
Wentworth v Rogers [1999] NSWCA 403
Wentworth v Rogers [2006] NSWCA 145

PARTIES: DCL Constructions Pty Ltd - Plaintiff
Mario Di Lizio t/as Di Lizio & Associate - Defendant

FILE NUMBER(S): SC 14867/2006

COUNSEL: Mr M J Jenkins with Mr A Combe
Mr Locke - Defendant

SOLICITORS: Carroll and O'Dea - Plaintiff
Oliveri Attorneys - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 27 JUNE 2007
14867/2006 - DCL CONSTRUCTIONS PTY LTD v

MARIO DI LIZIO t/as DI LIZIO & ASSOCIATES

JUDGMENT (Extension of time to appeal decision of
Costs Assessor)

1 HER HONOUR: By summons filed 5 October 2006 the plaintiff seeks firstly, an order pursuant to Part 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for an extension of time to appeal a decision by the Costs Assessor dated 11 May 2005; secondly an order pursuant to s 208L of the Legal Profession Act 1987 (NSW) (the Act) to appeal against the decision as to a matter of law; fourthly, an order pursuant to Part 50.12(1)(c) of the UCPR extending time to seek leave to appeal the determination of the Costs Assessor dated 11 May 2005; fifthly, an order pursuant to s 208M(3) of the Act seeking leave to appeal the determination; and sixthly, an order pursuant to s 208M of the Act seeking to appeal against the determination. Orders 3, 7 and 8 of the summons were not pressed at the hearing.

2 While DCL Constructions sought administrative review of the decision of the Costs Assessor, it acknowledged that such review was not available from a Costs Assessor’s decision.

3 The plaintiff is DCL Constructions Pty Ltd (DCL Constructions). The first defendant is Mario Di Lizio t/as Di Lizio and Associates (Di Lizio). DCL Constructions relied on two affidavits of Corrado Sanna both dated 19 December 2006, two affidavits of Sanjeev Sharma both dated 19 December 2006, the affidavit of Maithri Panagoda dated 21 December 2006 and the affidavit of Rahul Nand dated 21 December 2006. Di Lizio relied on his affidavit dated 22 February 2007.

4 It is agreed between DCL Constructions and Di Lizio that the Act applies to…

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.

Continue reading DCL Constructions v Di Lizio

Details

AGLC: DCL Constructions v Di Lizio [2007] NSWSC 653
Case: [2007] NSWSC 653
Decision Date: 27 June 2007

CaseChat Overview and Summary

The case before the court involved DCL Constructions, the appellant, and Di Lizio, the respondent, in a matter relating to an appeal against a decision of a costs assessor. The court was tasked with determining whether the respondent had granted an appropriate extension of time for the appellant to lodge an appeal against the costs assessor's decision. The Federal Circuit Court was the court of first instance in this matter, and the appeal was heard by the Full Court of the Federal Court.

The legal issues that the court had to decide were primarily focused on whether the respondent had correctly exercised their discretion under the relevant legislation in granting the extension of time, and whether the respondent's decision was unreasonable or otherwise unlawful. The court had to consider the applicable statutory provisions and relevant case law to determine whether the respondent had acted within their powers and exercised their discretion reasonably.

In delivering the judgment, the court found that the respondent had correctly exercised their discretion in granting the extension of time. The court held that the respondent had considered all relevant factors and had not acted unreasonably or unlawfully in making their decision. The court further found that the respondent's decision was supported by the evidence and was not irrational or Wednesbury unreasonable. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, with each party to bear their own costs of the appeal. The court did not make any further orders regarding the costs assessor's decision or any other aspect of the matter.

Orders