J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203

J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203

Although there was some risk of prejudice to the appellant if the money were paid out, the appeal contentions concerning validity, procedural fairness and valuation were not shown to justify a stay, and the Act's policy of prompt payment required more than the identified risk of prejudice. In the circumstances, the applicant failed to establish a sufficient basis for a stay pending appeal.

Jurisdiction
Australia
Judgment Date
20 August 2008
Procedural Posture
Application for Stay Pending Appeal / Notice of Motion in the NSW Court of Appeal Seeking a Stay of Orders Made by Mc Dougall J on 30 July 2008 Until Determination of the Appeal.
Outcome
Motion dismissed.
Legal Topics
['stay Pending Appeal' 'building and Construction Industry Security of Payment Act 1999' 'adjudication Determination' 'payment Claim and Payment Schedule' 'procedural Fairness' 'risk of Non Recovery']
['construction Law' 'civil Procedure' 'administrative Law'] ['stay Pending Appeal' 'building and Construction Industry Security of Payment Act 1999' 'adjudication Determination' 'payment Claim and Payment Schedule' 'procedural Fairness' 'risk of Non Recovery']

Case Brief

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Procedural Posture

Application for Stay Pending Appeal / Notice of Motion in the NSW Court of Appeal Seeking a Stay of Orders Made by Mc Dougall J on 30 July 2008 Until Determination of the Appeal.

Legal Issues

  1. 1 ['Whether orders dismissing proceedings challenging an adjudication determination and directing payment out of money paid into Court should be stayed pending appeal.' 'Whether the proposed appeal grounds concerning the variations issue and the value of work issue were sufficiently strong to support a stay.' 'Whether payment of the money to the respondent would create a sufficient risk of prejudice or non-recovery to justify a stay despite the policy of the Building and Construction Industry Security of Payment Act 1999.']

Ratio Decidendi

Although there was some risk of prejudice to the appellant if the money were paid out, the appeal contentions concerning validity, procedural fairness and valuation were not shown to justify a stay, and the Act's policy of prompt payment required more than the identified risk of prejudice. In the circumstances, the applicant failed to establish a sufficient basis for a stay pending appeal.

Court Disposition

Motion dismissed.

Orders

  • ['Dismiss the motion.' "The appellant is to pay the first respondent's costs."]