Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52

The stay and remittal applications were refused because the costs orders were orders of the Court of Appeal, Schofield and the passages in Derham did not support a stay in the different circumstances of this case, Probuild's asserted Equity Division claim did not create an equitable set-off against Shade Systems' right to costs, the relief sought was in substance akin to a freezing order without demonstrated abuse of process, the application was contrary to the spirit of Probuild's undertaking to the High Court not to disturb the Court of Appeal costs orders, and the dictates of justice and timely finality under the Civil Procedure Act favoured bringing the failed administrative law...

Jurisdiction
Australia
Judgment Date
21 March 2018
Procedural Posture
Notice of Motion for Stay of Court of Appeal Costs Orders and Application to Amend Earlier Judgment / On the Papers; Consequential Orders After Unsuccessful High Court Appeal
Outcome
Probuild's motion for a stay or remittal was dismissed with costs; the Court amended paragraph [25] of an earlier judgment.
Legal Topics
['stay of Costs Orders' 'remittal to Equity Division' 'security of Payment Progress Payments' 'set Off' 'freezing Order Analogy' 'amendment of Judgment']
['civil Procedure' 'construction Law' 'costs'] ['stay of Costs Orders' 'remittal to Equity Division' 'security of Payment Progress Payments' 'set Off' 'freezing Order Analogy' 'amendment of Judgment']

Case Brief

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Procedural Posture

Notice of Motion for Stay of Court of Appeal Costs Orders and Application to Amend Earlier Judgment / On the Papers; Consequential Orders After Unsuccessful High Court Appeal

Legal Issues

  1. 1 ['Whether enforcement of costs orders made by the Court of Appeal on 23 December 2016 should be stayed pending separate Equity Division proceedings brought by Probuild against Shade Systems.' 'Whether the matter should alternatively be remitted to the Equity Division for the question of the costs orders to be dealt with as part of case management of those proceedings.' 'Whether paragraph [25] of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 should be amended.']

Ratio Decidendi

The stay and remittal applications were refused because the costs orders were orders of the Court of Appeal, Schofield and the passages in Derham did not support a stay in the different circumstances of this case, Probuild's asserted Equity Division claim did not create an equitable set-off against Shade Systems' right to costs, the relief sought was in substance akin to a freezing order without demonstrated abuse of process, the application was contrary to the spirit of Probuild's undertaking to the High Court not to disturb the Court of Appeal costs orders, and the dictates of justice and timely finality under the Civil Procedure Act favoured bringing the failed administrative law...

Court Disposition

Probuild's motion for a stay or remittal was dismissed with costs; the Court amended paragraph [25] of an earlier judgment.

Orders

  • ['The motion filed by Probuild Constructions (Aust) Pty Ltd dated 14 February 2018 is dismissed with costs, such costs to include the costs of preparation of the submissions filed by Shade Systems on 20 March 2018.' 'Pursuant to s 14 of the Civil Procedure Act dispense with the requirements of Uniform Civil...