A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144

A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144

The order requiring A-Civil to produce the whole of its current MYOB file was erroneous because paragraph 22 of the Notice to Produce was directed to testing financial documents referred to in an affidavit on which A-Civil did not rely and which it undertook not to tender; A-Civil bore no onus to prove solvency, and Ceerose had not identified or substantiated any reasonable basis for a sufficient likelihood of insolvency or financial difficulty. In the statutory context of the Security of Payment Act, which assigns insolvency risk to the principal and favours prompt payment, Ceerose was not entitled to a wide-ranging fishing inquiry into A-Civil's financial records in support of stays...

Jurisdiction
Australia
Judgment Date
29 June 2023
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Production Order / Court of Appeal, Interlocutory Appeal
Outcome
Leave to appeal granted; leave to rely on further evidence refused; appeal allowed; production order and paragraph 22 of the Notice to Produce set aside; respondent ordered to pay costs.
Legal Topics
['security of Payment Adjudication' 'notice to Produce' 'production of Financial Records' 'interlocutory Stay or Injunction' 'leave to Appeal' 'fresh Evidence on Appeal' 'solvency and Risk of Insolvency']
['appeals' 'building and Construction' 'civil Procedure'] ['security of Payment Adjudication' 'notice to Produce' 'production of Financial Records' 'interlocutory Stay or Injunction' 'leave to Appeal' 'fresh Evidence on Appeal' 'solvency and Risk of Insolvency']

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Production Order / Court of Appeal, Interlocutory Appeal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from an interlocutory order requiring production of A-Civil's MYOB financial records." 'Whether the primary judge erred by ordering production of raw financial data underlying documents that A-Civil did not rely on and undertook not to tender.' "Whether Ceerose established an entitlement to use compulsory processes to investigate A-Civil's solvency in support of stays pending contractual proceedings or appeal." 'Whether Ceerose should be granted leave to rely on the affidavit of Ms Saad sworn 9 June 2023.']

Ratio Decidendi

The order requiring A-Civil to produce the whole of its current MYOB file was erroneous because paragraph 22 of the Notice to Produce was directed to testing financial documents referred to in an affidavit on which A-Civil did not rely and which it undertook not to tender; A-Civil bore no onus to prove solvency, and Ceerose had not identified or substantiated any reasonable basis for a sufficient likelihood of insolvency or financial difficulty. In the statutory context of the Security of Payment Act, which assigns insolvency risk to the principal and favours prompt payment, Ceerose was not entitled to a wide-ranging fishing inquiry into A-Civil's financial records in support of stays...

Court Disposition

Leave to appeal granted; leave to rely on further evidence refused; appeal allowed; production order and paragraph 22 of the Notice to Produce set aside; respondent ordered to pay costs.

Orders

  • ['Grant the applicant leave to appeal.' 'Direct that the applicant file within 7 days a notice of appeal in the form of the draft amended notice of appeal dated 18 June 2023.' 'Refuse leave to rely on the affidavit of Ms Saad sworn 9 June 2023.' 'Allow the appeal.' 'Set aside the order made by the primary judge on...