Robertiello v Di Lione - [2003] QCA 497

SUPREME COURT OF QUEENSLAND

CITATION:

Robertiello v Di Lione & Anor [2003] QCA 497

PARTIES:

VINCENZO ROBERTIELLO
(appellant/respondent)
v
LINO DI LIONE
(first respondent/first applicant)
FRANK DI LIONE
(second respondent/second applicant)

FILE NO/S:

Appeal No 3545 of 2003
DC No 3112 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for extension of time

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2003

JUDGES:

McMurdo P, Mackenzie and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for extension of time granted

2.   The application for leave to appeal is dismissed

3.   The applicants pay the respondent’s costs of the application

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where original decision of Queensland Building Tribunal – where respondent successfully appealed to District Court and Queensland Building Tribunal decision was set aside – where applicant seeks leave to appeal from District Court decision – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld) s 118(3)

Queensland Building Tribunal Act, 2000 (Qld) s 125(5), s 92

ACI Operations Pty Ltd v Bawden [2002] QCA 286; Appeal No 3970 of 2002, 6 August 2002, cited
Cooper v Jezer Construction Group Pty Ltd [2003] QCA 335; Appeal No 5591 of 2003, 1 August 2003, cited
Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131; Appeal No 5981 of 2001, 24 May 2002, cited

COUNSEL:

T Matthews for the applicants
H Zillman for the respondent

SOLICITORS:

N R Barbi Solicitors for the applicants
James Conomos Lawyers for the respondent

MCMURDO P: I agree with Wilson J that, for the reasons she gives, the application for leave to appeal should be dismissed with costs.

MACKENZIE J: I agree with the orders proposed by Wilson J for the reasons given by her.

WILSON J: The applicants seek leave to appeal from a decision of the District Court in its appellate jurisdiction. At the commencement of the hearing, the applicants were granted an extension of time in which to seek such leave.

The applicants were the owner and builder of a house at 68 Chester Street, Teneriffe. In August 1995 the second applicant engaged the respondent to apply a waterproof protective coating to the balcony of the house. The balcony has leaked since about March 2001. The applicants allege that defective workmanship on the part of the respondent caused the leak, and that they have suffered loss and damage of approximately $14,500 in consequence.

In August 2001 the applicants commenced a proceeding against the respondent in the Queensland Building Tribunal claiming damages or alternatively rectification. The dispute went to mediation on 18 September 2001, when a compromise was reached in the following terms:

“The parties in the dispute have reached…

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: [2003] QCA 497
Decision Date: 14 November 2003

CaseChat Overview and Summary

The case of Robertiello v Di Lione involved an appeal from a decision of the District Court of Queensland. The applicants, Robertiello, sought leave to appeal from a decision of the District Court, which had overturned a decision of the Queensland Building Tribunal. The Tribunal's original decision had been in favour of the applicants, but the District Court had found in favour of the respondent, Di Lione. The applicants now sought leave to appeal to the Supreme Court of Queensland from the District Court decision.

The primary legal issue before the court was whether leave to appeal should be granted to the applicants, in light of the fact that the original decision of the Queensland Building Tribunal had already been overturned by the District Court. The court was required to consider the appropriate circumstances in which leave to appeal should be granted, as well as the general principles of appellate jurisdiction and the role of the Supreme Court in reviewing decisions of lower courts.

The court found that the applicants had not demonstrated that there were any grounds for appeal which were of sufficient merit to warrant an appeal to the Supreme Court. The court noted that the District Court had carefully considered the evidence and arguments presented to it, and had made a decision which was supported by the evidence. The court found that the applicants had not identified any errors of law or fact which had been made by the District Court, and that the decision of the District Court was therefore likely to be upheld on appeal. The court therefore dismissed the application for leave to appeal.

The court did, however, grant the applicants' application for an extension of time in which to lodge their application for leave to appeal. The applicants were ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. The application for extension of time granted

2. The application for leave to appeal is dismissed

3. The applicants pay the respondent’s costs of the application

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Robertiello v Di Lione & Anor [2003] QCA 497
PARTIES:	VINCENZO ROBERTIELLO (appellant/respondent) v LINO DI LIONE (first respondent/first applicant) FRANK DI LIONE (second respondent/second applicant)
FILE NO/S:	Appeal No 3545 of 2003 DC No 3112 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for extension of time Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2003
JUDGES:	McMurdo P, Mackenzie and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for extension of time granted 2. The application for leave to appeal is dismissed 3. The applicants pay the respondent’s costs of the application
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where original decision of Queensland Building Tribunal – where respondent successfully appealed to District Court and Queensland Building Tribunal decision was set aside – where applicant seeks leave to appeal from District Court decision – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld) s 118(3) Queensland Building Tribunal Act, 2000 (Qld) s 125(5), s 92 ACI Operations Pty Ltd v Bawden [2002] QCA 286; Appeal No 3970 of 2002, 6 August 2002, cited Cooper v Jezer Construction Group Pty Ltd [2003] QCA 335; Appeal No 5591 of 2003, 1 August 2003, cited Pointon v Redcliffe Demolitions Pty Ltd [2002] QDC 131; Appeal No 5981 of 2001, 24 May 2002, cited
COUNSEL:	T Matthews for the applicants H Zillman for the respondent
SOLICITORS:	N R Barbi Solicitors for the applicants James Conomos Lawyers for the respondent