Vannella Pty Ltd Atf Capitalist Family Trust v TFM Epping Land Pty Ltd and Katoomba Residence Investment Pty Ltd;; Decon Australia Pty Ltd v TFM Epping Land Pty Ltd and Katoomba Residence Investment Pty Ltd [2020] NSWSC 659

Vannella Pty Ltd Atf Capitalist Family Trust v TFM Epping Land Pty Ltd and Katoomba Residence Investment Pty Ltd;; Decon Australia Pty Ltd v TFM Epping Land Pty Ltd and Katoomba Residence Investment Pty Ltd [2020] NSWSC 659

Requirements of justice do not warrant the granting of a stay: the developers' own financial position, not that of the builder, is at issue, and allowing a stay would undermine the purpose of the Security of Payment Act, which is to ensure that funds flow to contractors even where a developer is insolvent. There is no authority for granting a stay in these circumstances.

Parties
First Plaintiff: Vannella Pty Ltd Atf the Capitalist Family Trust; Second Plaintiff: Decon Australia Pty Limited; First Defendant: TFM Epping Land Pty Ltd; Second Defendant: Katoomba Residence Investment Pty Ltd; Third Defendant: Dr Yi Hao (Eric) Zhang
Jurisdiction
Australia
Judgment Date
29 May 2020
Procedural Posture
Application for Stay / Final Decision on Stay Application
Outcome
Application for stay refused; notice of motion dismissed with costs.
Legal Topics
Security of Payment, Stay of Proceedings, Cross Claim, Summary Judgment, Insolvency
Building and Construction Equity Technology and Construction Security of Payment Stay of Proceedings Cross Claim Summary Judgment Insolvency

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Parties

Vannella Pty Ltd Atf the Capitalist Family Trust

First Plaintiff

Decon Australia Pty Limited

Second Plaintiff

TFM Epping Land Pty Ltd

First Defendant

Katoomba Residence Investment Pty Ltd

Second Defendant

Dr Yi Hao (Eric) Zhang

Third Defendant

Procedural Posture

Application for Stay / Final Decision on Stay Application

Legal Issues

  1. 1 Whether the stay of judgment should be granted pending determination of cross-claim
  2. 2 Whether the financial position of the developers justifies a stay under the Building and Construction Industry Security of Payment Act 1999 (NSW)

Ratio Decidendi

Requirements of justice do not warrant the granting of a stay: the developers' own financial position, not that of the builder, is at issue, and allowing a stay would undermine the purpose of the Security of Payment Act, which is to ensure that funds flow to contractors even where a developer is insolvent. There is no authority for granting a stay in these circumstances.

Court Disposition

Application for stay refused; notice of motion dismissed with costs.

Orders

  • Defendants' notice of motion of 18 May 2020 dismissed with costs.