Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 67

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 67

The stay was granted because the plaintiff had reasonably arguable grounds of appeal on questions of law, particularly that the Appeal Panel failed to give adequate reasons for the finding underpinning order 3, and had a reasonably arguable basis for leave to appeal. The evidence showed a significant risk of substantial prejudice to the plaintiff if the orders were not stayed, including insolvency, inability to trade, possible licence suspension and inability to prosecute the appeal, while the defendants were unlikely to suffer significant prejudice if payment and costs assessment were delayed. The balance of convenience and the interests of justice therefore favoured staying orders 3 and...

Jurisdiction
Australia
Judgment Date
09 February 2023
Procedural Posture
Application for a Stay of Orders Made by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales Pending Determination of an Application for Leave to Appeal and Any Appeal / Notice of Motion for Stay Pending Leave to Appeal
Outcome
Stay granted.
Legal Topics
['stay Pending Appeal' 'leave to Appeal on a Question of Law' 'adequacy of Reasons' 'balance of Convenience' 'ncat Appeal Panel Orders' 'home Building Work']
['practice and Procedure' 'administrative Law' 'home Building'] ['stay Pending Appeal' 'leave to Appeal on a Question of Law' 'adequacy of Reasons' 'balance of Convenience' 'ncat Appeal Panel Orders' 'home Building Work']

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Procedural Posture

Application for a Stay of Orders Made by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales Pending Determination of an Application for Leave to Appeal and Any Appeal / Notice of Motion for Stay Pending Leave to Appeal

Legal Issues

  1. 1 ['Whether the Court had power to stay the operation of orders 3 and 4 made by the NCAT Appeal Panel.' 'Whether the plaintiff had reasonably arguable grounds of appeal on a question of law and a reasonably arguable basis for leave to appeal.' 'Whether the balance of convenience and the interests of justice favoured granting a stay.' 'Whether the plaintiff faced substantial prejudice if the stay was refused and whether the defendants faced significant prejudice if it was granted.']

Ratio Decidendi

The stay was granted because the plaintiff had reasonably arguable grounds of appeal on questions of law, particularly that the Appeal Panel failed to give adequate reasons for the finding underpinning order 3, and had a reasonably arguable basis for leave to appeal. The evidence showed a significant risk of substantial prejudice to the plaintiff if the orders were not stayed, including insolvency, inability to trade, possible licence suspension and inability to prosecute the appeal, while the defendants were unlikely to suffer significant prejudice if payment and costs assessment were delayed. The balance of convenience and the interests of justice therefore favoured staying orders 3 and...

Court Disposition

Stay granted.

Orders

  • ["Orders 3 and 4 made by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales on 14 November 2022 are stayed until the determination of the plaintiff's application for leave to appeal made by the summons filed on 2 September 2022 and of any appeal, if leave is granted." 'The costs of this...