Gilles v Palmieri

[2016] NSWCA 219

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gilles v Palmieri [2016] NSWCA 219

Hearing dates:

19 July 2016

Decision date:

23 August 2016

Before:

Basten JA at [1];
Leeming JA at [2];
Sackville AJA at [41]

Decision:

1. Grant leave to appeal.

 

2. Dispense with the requirements to file and serve a notice of appeal.

 

3. Appeal allowed in part.

 

4. Set aside order 5 made on 4 December 2015, and in lieu thereof order that the plaintiffs pay the defendants’ costs of the proceedings (including the costs of the notices of motion filed on 16 September 2015 and 27 October 2015).

 

5. Otherwise dismiss the appeal.

 6. The appellants pay the respondents’ costs of the appeal (including the application for leave to appeal).

Catchwords:

PROCEDURE – service of originating process – extension of time – statement of liquidated claim filed almost six years after tax invoices had been rendered – service not effected until some nine months later – primary judge refused to grant an extension of time for service – whether primary judge failed to give reasons – whether primary judge erred in considering there was no power to extend time, or in the exercise of discretion – whether on appeal an order should be made extending time in circumstances where there had not been a full explanation for the delay, and aspects of the explanation were unsatisfactory

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59
District Court Act 1973 (NSW), s 47
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW), s 355
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 6.2

Cases Cited:

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402; 89 NSWLR 209
AK v Western Australia [2008] HCA 8; 232 CLR 438
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Laurie v Carroll (1958) 98 CLR 310
Pritchard v DJZ Constructions Pty Ltd [2012] NSWCA 413
Wakim v Coleman [2010] NSWCA 221
Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing and Broadcasting Ltd [2012] NSWCA 79; 88 ACSR 80

Category:

Principal judgment

Parties:

Joseph John Gilles (First Applicant)
Gregory George Eliades (Second Applicant)
Vince Palmieri (First Respondent)
DJZ Constructions Pty Ltd (Second Respondent)

Representation:

Counsel:
IE Davidson SC, L Hulmes (Applicants)
BM Green (Respondents)

  Solicitors:
Giles Payne & Co (Applicants)
Navado Lawyers (Respondents)

File Number(s):

2015/377399

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil Jurisdiction

Date of Decision:

4 December 2015

Before:

Gibb DCJ

File Number(s):

2014/350058

Judgment

1. BASTEN JA: I agree with Leeming JA.

2. LEEMING JA: For the reasons which follow, the decision of the primary judge to refuse to extend the time for service of a statement of claim is vitiated by a series of errors. However, I have concluded that, even so, it…