Romeo v De Chiara Constructions Pty Limited

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Romeo v De Chiara Constructions Pty Limited [2012] NSWCA 190

Hearing dates:

21 June 2012

Decision date:

21 June 2012

Before:

Macfarlan JA at [1];
Meagher JA at [2]

Decision:

(1)The applicant is granted an extension of time to file and serve a notice of appeal which excludes grounds 1 to 5 inclusive and order 2(1) as sought but is otherwise in the form of annexure A to the affidavit of Damian Phair sworn 21 June 2012.

(2)The applicant to pay the first respondent's costs thrown away by the filing and prosecution of the summons seeking leave to appeal.

(3)The costs of the application for an extension of time to file and serve a notice of appeal be costs in the appeal.

(4)The reference to "proceedings" in the grounds of appeal in order (1) is to proceedings on the claim and cross-claim before Olsson DCJ.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - practice and procedure - appeal out of time - application for extension of time - no question of principle

Legislation Cited:

Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules

Cases Cited:

Beneficial Insurance Co v Hamilton (1985) 73 FLR 347
Campbell v Metway Leasing Ltd [2001] FCA 1311; 188 ALR 100
John v Neiman Holdings Pty Ltd (1986) 84 FLR 84
Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61

Texts Cited:

McDonald, Henry & Meek, Australian Bankruptcy Law & Practice, 6th ed (loose-leaf) Thomson Reuters

Category:

Interlocutory applications

Parties:

Giuseppe Romeo (Applicant)
De Chiara Constructions Pty Ltd (First Respondent)
Anna Maria Romeo (Second Respondent)

Representation:

Counsel:
R E Dubler SC (Applicant)
M R Pesman (First Respondent)
No appearance (Second Respondent)
Solicitors:
Proctor Phair Lawyers
Tully & Chiper Lawyers
No appearance (Second Respondent)

File Number(s):

CA 2012/72704

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-12-05 00:00:00

Before:

Olsson DCJ

File Number(s):

2010/100571

Judgment

1. MACFARLAN JA: I agree with Meagher JA.

1. MEAGHER JA: The applicant (Mr Romeo) seeks an order under UCPR r 51.9(1)(b) extending the time to file and serve a notice of appeal from the decision and orders of Olsson DCJ given and made on 5 December 2011.

1. The respondent (De Chiara) sued Mr Romeo and his wife for moneys due under a contract for building works on a property at Church Point. That claim was commenced in March 2010. In their verified defence filed in June 2010, Mr and Mrs Romeo admitted that they were parties to that contract. By a verified cross-claim filed in July 2010 they claimed damages from De…