Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2022] NSWSC 1487

Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2022] NSWSC 1487

There was insufficient evidence to support the existence of a serious issue to be tried as to denial of procedural fairness, as any error by the adjudicator was unlikely to be material, and the core entitlement to retention monies arose from termination rather than the impugned clause. The risk of irreparable harm sufficient to warrant a Brodyn/Grosvenor stay was not substantiated. Holding the determined sum in Court deprived the subcontractor of cashflow, contrary to the Act's purpose. Therefore, the balance of convenience and legislative object did not support continuing the injunction.

Jurisdiction
Australia
Judgment Date
02 November 2022
Procedural Posture
Application (interlocutory/injunction) / Application to Extend Interim Injunction
Outcome
Application to extend interim injunction refused
Legal Topics
['security of Payment' 'injunctions' 'procedural Fairness' 'subcontractor Entitlement' 'adjudication Determinations' 'stay of Judgment']
['building and Construction Law' 'equity' 'civil Procedure'] ['security of Payment' 'injunctions' 'procedural Fairness' 'subcontractor Entitlement' 'adjudication Determinations' 'stay of Judgment']

Case Brief

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Procedural Posture

Application (interlocutory/injunction) / Application to Extend Interim Injunction

Legal Issues

  1. 1 ['Whether interim injunction restraining enforcement of adjudication determination should be extended' 'Whether serious issue to be tried as to denial of procedural fairness justifies extension' 'Whether a Brodyn/Grosvenor stay is warranted based on risk of irreparable harm' 'Balance of convenience between contractor (Ceerose) and subcontractor (A-Civil)']

Ratio Decidendi

There was insufficient evidence to support the existence of a serious issue to be tried as to denial of procedural fairness, as any error by the adjudicator was unlikely to be material, and the core entitlement to retention monies arose from termination rather than the impugned clause. The risk of irreparable harm sufficient to warrant a Brodyn/Grosvenor stay was not substantiated. Holding the determined sum in Court deprived the subcontractor of cashflow, contrary to the Act's purpose. Therefore, the balance of convenience and legislative object did not support continuing the injunction.

Court Disposition

Application to extend interim injunction refused

Orders

  • ['Refuse to extend the interim injunction in Order 4 made on 14 October 2022' "Order the plaintiff to pay the first defendant's costs of the application to extend the interim injunction" 'Matter stood over for further directions before the Technology & Construction List Judge on 11 November 2022']