PPK Willoughby v Eighty Eight Construction (No.2) [2014] NSWSC 839

PPK Willoughby v Eighty Eight Construction (No.2) [2014] NSWSC 839

The plaintiff's challenge to the adjudicator's determination having failed, both the claim and second cross-claim were dismissed with costs; the first cross-claim was stood over to the final hearing pending referee’s report since issues of defective works remain unresolved; a temporary stay was granted on specified orders to enable parties to clarify their positions and, if necessary, bring a stay application pending appeal or further evidence of insolvency.

Parties
Plaintiff: PPK Willoughby Pty Ltd; First Defendant: Eighty Eight Construction Pty Ltd; Second Defendant: Scott Petersen; Third Defendant: Adjudicate Today Pty Limited
Jurisdiction
Australia
Judgment Date
25 June 2014
Procedural Posture
Building and Construction Application for Stay and Cross Claims / Interlocutory Determination Following Earlier Judgment, Orders as to Dismissal and Stay
Outcome
Summons and second cross-claim dismissed with costs; first cross-claim stood over to final hearing with costs reserved; stay of orders 3 and 4 until 27 June 2014.
Legal Topics
Application for Stay of Order, Payment Into Court, Costs of Cross Claim, Defective Works, Enforcement of Adjudication Determination
Building and Construction Procedure Application for Stay of Order Payment Into Court Costs of Cross Claim Defective Works Enforcement of Adjudication Determination

Case Brief

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Parties

PPK Willoughby Pty Ltd

Plaintiff

Eighty Eight Construction Pty Ltd

First Defendant

Scott Petersen

Second Defendant

Adjudicate Today Pty Limited

Third Defendant

Procedural Posture

Building and Construction Application for Stay and Cross Claims / Interlocutory Determination Following Earlier Judgment, Orders as to Dismissal and Stay

Legal Issues

  1. 1 Whether to grant a stay of an order for payment out of money paid into court for interlocutory relief pending possible appeal or risk of insolvency
  2. 2 Whether to make a costs order in respect of a cross-claim that raises issues not yet decided and is essentially defensive

Ratio Decidendi

The plaintiff's challenge to the adjudicator's determination having failed, both the claim and second cross-claim were dismissed with costs; the first cross-claim was stood over to the final hearing pending referee’s report since issues of defective works remain unresolved; a temporary stay was granted on specified orders to enable parties to clarify their positions and, if necessary, bring a stay application pending appeal or further evidence of insolvency.

Court Disposition

Summons and second cross-claim dismissed with costs; first cross-claim stood over to final hearing with costs reserved; stay of orders 3 and 4 until 27 June 2014.

Orders

  • Plaintiff's claim dismissed with costs
  • Plaintiff's second cross-claim dismissed with costs