Smith v Impero Pacific Group Pty Ltd t/as Impero Constructions (No 2) [2024] NSWSC 1316

Smith v Impero Pacific Group Pty Ltd t/as Impero Constructions (No 2) [2024] NSWSC 1316

The service of a bankruptcy notice on the Plaintiff constituted a material change in circumstances from the prior stay order, because imminent bankruptcy threatened to stultify the proceedings. In these circumstances, and given the Plaintiff's undertaking regarding proceeds from property sales, the stay was lifted to allow the matter to be heard.

Parties
Plaintiff/respondent: Samantha Smith; First Defendant/applicant: Impero Pacific Group Pty Ltd trading as Impero Constructions; Second Defendant: John O'Brien
Jurisdiction
Australia
Judgment Date
17 October 2024
Procedural Posture
Proceedings Challenging Adjudication Determination / Application to Lift Stay of Proceedings
Outcome
Stay of proceedings lifted
Legal Topics
Stay of Proceedings, Bankruptcy Notice, Security of Payment Adjudication, Hardship, Undertakings to the Court
Equity Building and Construction Stay of Proceedings Bankruptcy Notice Security of Payment Adjudication Hardship Undertakings to the Court

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Parties

Samantha Smith

Plaintiff/respondent

Impero Pacific Group Pty Ltd trading as Impero Constructions

First Defendant/applicant

John O'Brien

Second Defendant

Procedural Posture

Proceedings Challenging Adjudication Determination / Application to Lift Stay of Proceedings

Legal Issues

  1. 1 Whether circumstances have materially changed to warrant lifting the stay previously ordered until the Plaintiff pays the adjudicated amount into Court
  2. 2 Effect of service of bankruptcy notice on Plaintiff regarding continuation of the proceedings

Ratio Decidendi

The service of a bankruptcy notice on the Plaintiff constituted a material change in circumstances from the prior stay order, because imminent bankruptcy threatened to stultify the proceedings. In these circumstances, and given the Plaintiff's undertaking regarding proceeds from property sales, the stay was lifted to allow the matter to be heard.

Court Disposition

Stay of proceedings lifted

Orders

  • Order that the stay ordered on 26 September 2024 is lifted