DCL Constructions v Di Lizio [2007] NSWSC 653

New South Wales Supreme Court

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

Graham v Aluma-Lite Pty Ltd (NSWCA, 25 March 1997, unreported) Hall Chadwick v Doyle [2006] NSWSC 1195 CASES CITED : 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 these proceedings. The Act has since been repealed and replaced by Legal Profession Act 2004 (NSW), but the provisions relating to an appeal and leave to appeal are similar.