McLaughlin's Family Restaurant v Cordukes Ltd [2004] NSWCA 447

McLaughlin's Family Restaurant v Cordukes Ltd [2004] NSWCA 447

The claimant failed to demonstrate hardship or irrecoverability of the judgment sum and had considerable difficulties in its appeal argument; stay refused in accordance with policy favouring prompt payment under the Act.

Parties
Claimant: McLaughlin's Family Restaurant; Opponent: Cordukes Ltd
Jurisdiction
Australia
Judgment Date
20 December 2004
Procedural Posture
Stay Application / Application for Stay of Enforcement of District Court Judgment Pending Appeal
Outcome
Stay application dismissed, claimant ordered to pay opponent's costs.
Legal Topics
Stay of Execution, Payment Claims Under Building and Construction Industry Security of Payment Act 1999, Extension of Time for Appeal
Construction Law Civil Procedure Stay of Execution Payment Claims Under Building and Construction Industry Security of Payment Act 1999 Extension of Time for Appeal

Case Brief

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Parties

McLaughlin's Family Restaurant

Claimant

Cordukes Ltd

Opponent

Procedural Posture

Stay Application / Application for Stay of Enforcement of District Court Judgment Pending Appeal

Legal Issues

  1. 1 Whether remedial work constituted 'construction work' for purposes of s 13(4)(b) of the Building and Construction Industry Security of Payment Act 1999 and could extend the period for serving a payment claim
  2. 2 Whether a stay of enforcement of judgment should be granted in circumstances where policy of Act favours prompt payment and hardship or irrecoverability is not shown
  3. 3 Extension of time for filing notice of appeal

Ratio Decidendi

The claimant failed to demonstrate hardship or irrecoverability of the judgment sum and had considerable difficulties in its appeal argument; stay refused in accordance with policy favouring prompt payment under the Act.

Court Disposition

Stay application dismissed, claimant ordered to pay opponent's costs.

Orders

  • Dismiss the claim in paragraph 4 of the notice of motion filed on 14 December 2004.
  • Order that the claimant pay the opponent's costs of the hearing today.