Procorp Civil Pty. Ltd. v. Napoli Excavations & Contracting Pty. Ltd. & Ors. [2006] NSWCA 118

Procorp Civil Pty. Ltd. v. Napoli Excavations & Contracting Pty. Ltd. & Ors. [2006] NSWCA 118

Although Napoli's complaints about Procorp's delay and the inadequate material had force, Procorp should not be deprived of a full hearing of its motion. Because Napoli sought the earliest possible full hearing, the appropriate course was to continue the stay only until the Notices of Motion were disposed of, on the usual undertaking as to damages and on a condition protecting Napoli against any third party claims to the $202,254 paid into Court.

Jurisdiction
Australia
Judgment Date
09 May 2006
Procedural Posture
Court of Appeal Notice of Motion for Stay Pending Appeal / Interlocutory Application to Extend a Stay of Einstein J's Order for Payment Out, With Napoli's Security for Costs Motion Also Before the Court
Outcome
Stay continued on conditions until determination of Procorp's Notice of Motion; both Notices of Motion stood over for an early hearing; directions made; costs of the day made Napoli's costs in Procorp's motion.
Legal Topics
['stay Pending Appeal' 'payment Out of Money Paid Into Court' 'security for Costs' 'adjudication Certificate Under the Building and Construction Industry Security of Payment Act' 'receivers and Third Party Claims']
['practice and Procedure' 'appeals' 'building and Construction'] ['stay Pending Appeal' 'payment Out of Money Paid Into Court' 'security for Costs' 'adjudication Certificate Under the Building and Construction Industry Security of Payment Act' 'receivers and Third Party Claims']

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Procedural Posture

Court of Appeal Notice of Motion for Stay Pending Appeal / Interlocutory Application to Extend a Stay of Einstein J's Order for Payment Out, With Napoli's Security for Costs Motion Also Before the Court

Legal Issues

  1. 1 ["Whether the stay of Einstein J's order for payment out of $202,254 to Napoli should be extended on a late application and incomplete material." 'Whether any extension of the stay should be conditional on security, an undertaking as to damages, or indemnity/disclaimer concerning third party claims to the money paid into Court.' 'Whether both Notices of Motion should proceed to an early full hearing rather than be finally determined immediately.']

Ratio Decidendi

Although Napoli's complaints about Procorp's delay and the inadequate material had force, Procorp should not be deprived of a full hearing of its motion. Because Napoli sought the earliest possible full hearing, the appropriate course was to continue the stay only until the Notices of Motion were disposed of, on the usual undertaking as to damages and on a condition protecting Napoli against any third party claims to the $202,254 paid into Court.

Court Disposition

Stay continued on conditions until determination of Procorp's Notice of Motion; both Notices of Motion stood over for an early hearing; directions made; costs of the day made Napoli's costs in Procorp's motion.

Orders

  • ['Both Notices of Motion stood over to Monday 22 May for hearing if a judge is able to embark on the hearing.' "Procorp directed to serve on Napoli any expert's report to be relied on, a schedule setting out the other evidence to be relied on, and any additional evidence-in-chief to be relied on, at or before 4pm on...