Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61

Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61

Banz failed without explanation to comply with two sets of Court directions and had taken no step to progress the Substantive Proceedings, thereby breaching its undertaking to prosecute those proceedings with all reasonable dispatch. If the undertaking was to the Court, that was a serious breach justifying the Court imposing a new interlocutory regime; if it was a promise to MBC, it was an essential term of the Consent Order agreement, or alternatively an intermediate term breached sufficiently seriously to justify termination. Banz did not discharge its onus of proving that the stay should be maintained because of MBC's limited solvency. The stay was therefore dissolved and the funds...

Jurisdiction
Australia
Judgment Date
12 March 2021
Procedural Posture
Civil Procedure / Notice of Motion for Payment of the Judgment Sum Out of Court and Dissolution of Stay of Enforcement
Outcome
Notice of Motion granted; stay of enforcement dissolved and funds ordered to be paid out to the Plaintiff's solicitor's Trust Account for payment to subcontractors, with costs to the Plaintiff.
Legal Topics
['stay of Enforcement of Judgment' 'consent Orders' 'payment Out of Court' 'security of Payment Adjudication' 'breach of Undertaking' 'interpretation of Consent Orders' 'termination for Breach']
['civil Procedure' 'building and Construction' 'contract Law'] ['stay of Enforcement of Judgment' 'consent Orders' 'payment Out of Court' 'security of Payment Adjudication' 'breach of Undertaking' 'interpretation of Consent Orders' 'termination for Breach']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Procedure / Notice of Motion for Payment of the Judgment Sum Out of Court and Dissolution of Stay of Enforcement

Legal Issues

  1. 1 ["Whether the stay of enforcement of the judgment should be dissolved notwithstanding the parties' Consent Order." 'Whether Banz breached its undertaking to prosecute the Substantive Proceedings with all reasonable dispatch.' 'Whether the undertaking was an essential term or, alternatively, an intermediate term whose breach justified termination of the agreement in the Consent Order.' 'Whether the judgment sum retained in the District Court Trust Account should be paid to MBC for payment to subcontractors.']

Ratio Decidendi

Banz failed without explanation to comply with two sets of Court directions and had taken no step to progress the Substantive Proceedings, thereby breaching its undertaking to prosecute those proceedings with all reasonable dispatch. If the undertaking was to the Court, that was a serious breach justifying the Court imposing a new interlocutory regime; if it was a promise to MBC, it was an essential term of the Consent Order agreement, or alternatively an intermediate term breached sufficiently seriously to justify termination. Banz did not discharge its onus of proving that the stay should be maintained because of MBC's limited solvency. The stay was therefore dissolved and the funds...

Court Disposition

Notice of Motion granted; stay of enforcement dissolved and funds ordered to be paid out to the Plaintiff's solicitor's Trust Account for payment to subcontractors, with costs to the Plaintiff.

Orders

  • ['The stay of enforcement of the judgment entered on 31 July 2020 is dissolved.' "The amount of $248,059.50 retained in the District Court Trust Account and any interest accrued thereon since 7 August 2020 be paid to the Plaintiff, by payment to its solicitor's Trust Account." "The plaintiff's solicitor is to make...