Shell Refining (Australia) Pty Limited v A J Mayr Pty Limited; A J Mayr Pty Limited v Shell Refining (Australia) Pty Limited [2006] NSWSC 154

Shell Refining (Australia) Pty Limited v A J Mayr Pty Limited; A J Mayr Pty Limited v Shell Refining (Australia) Pty Limited [2006] NSWSC 154

The motions failed because s 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) did not remove the Supreme Court's jurisdiction or discretion to order payment out of part of the security paid into court, particularly where that part was not in issue and the dictates of justice required it. There was therefore no basis to revoke the orders made on 8 March 2006.

Jurisdiction
Australia
Judgment Date
14 March 2006
Procedural Posture
Urgent Notices of Motion Seeking Revocation of Orders Made in Building and Construction Industry Security of Payment Act Proceedings / Applications to Revoke Orders Made on 8 March 2006 Requiring Payment Out of Part of Security Paid Into Court as a Condition of a Stay
Outcome
Applications dismissed with costs.
Legal Topics
['building and Construction Industry Security of Payment Act 1999 (nsw)' 'adjudication Certificate Filed as Judgment Debt' 'stay of Orders' 'security Paid Into Court' 'payment Out of Court' 'revocation of Orders' 'indemnity Costs']
['building and Construction' 'civil Procedure' 'jurisdiction'] ['building and Construction Industry Security of Payment Act 1999 (nsw)' 'adjudication Certificate Filed as Judgment Debt' 'stay of Orders' 'security Paid Into Court' 'payment Out of Court' 'revocation of Orders' 'indemnity Costs']

Case Brief

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Procedural Posture

Urgent Notices of Motion Seeking Revocation of Orders Made in Building and Construction Industry Security of Payment Act Proceedings / Applications to Revoke Orders Made on 8 March 2006 Requiring Payment Out of Part of Security Paid Into Court as a Condition of a Stay

Legal Issues

  1. 1 ['Whether s 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) required the adjudicated amount paid into court to remain in court until final determination of the proceedings.' 'Whether the Court had jurisdiction to order that part of the security paid into court be paid out to Mayr as a condition of granting a stay.' "Whether Shell's motions should be dismissed and whether costs should be awarded on an indemnity basis."]

Ratio Decidendi

The motions failed because s 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) did not remove the Supreme Court's jurisdiction or discretion to order payment out of part of the security paid into court, particularly where that part was not in issue and the dictates of justice required it. There was therefore no basis to revoke the orders made on 8 March 2006.

Court Disposition

Applications dismissed with costs.

Orders

  • ['The motions are dismissed.' 'Shell Refining (Australia) Pty Limited pay A J Mayr Engineering Pty Limited costs of the motions forthwith as agreed or assessed.']