PPK Willoughby v Eighty Eight Construction [2014] NSWSC 942

PPK Willoughby v Eighty Eight Construction [2014] NSWSC 942

No order as to costs was made because although costs ordinarily follow the event, this application for a stay should not have been necessary. The failure of Eighty Eight to respond promptly to legitimate requests for financial information contributed to PPK filing the notice of motion. If the documents had been produced earlier, the notice would likely not have been filed, and the application (and associated costs) could have been avoided. Each party should pay its own costs. The stay granted on 25 June 2014 was discharged, as no sufficient basis for it was established after disclosure of the financial documents.

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
04 July 2014
Procedural Posture
Procedural and Other Rulings / Costs Determination and Discharge of Stay
Outcome
No order as to costs; discharge of stay.
Legal Topics
Costs, Stay of Enforcement, Adjudication Under Security of Payment Act, Production of Documents
Civil Procedure Construction Law Costs Stay of Enforcement Adjudication Under Security of Payment Act Production of Documents

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

Procedural and Other Rulings / Costs Determination and Discharge of Stay

Legal Issues

  1. 1 Whether costs should follow the event in circumstances where the notice of motion was not pressed at hearing.
  2. 2 Whether the notice of motion for a stay was justified given the information available to the plaintiff.
  3. 3 Whether a stay should be granted under the Building and Construction Industry Security of Payment Act 1999 (NSW) based on the alleged insolvency of the defendant.

Ratio Decidendi

No order as to costs was made because although costs ordinarily follow the event, this application for a stay should not have been necessary. The failure of Eighty Eight to respond promptly to legitimate requests for financial information contributed to PPK filing the notice of motion. If the documents had been produced earlier, the notice would likely not have been filed, and the application (and associated costs) could have been avoided. Each party should pay its own costs. The stay granted on 25 June 2014 was discharged, as no sufficient basis for it was established after disclosure of the financial documents.

Court Disposition

No order as to costs; discharge of stay.

Orders

  • Notice of motion filed on 25 June 2014 dismissed with no order as to costs; each party to pay its own costs.
  • Exhibits on the application to be returned.