Render Design (Aus) Pty Ltd v Sky Stand Plastering Pty Ltd [2014] NSWDC 317

Render Design (Aus) Pty Ltd v Sky Stand Plastering Pty Ltd [2014] NSWDC 317

The plaintiff's claim was an ordinary claim for damages for breach of contract and did not seek to set aside, restrain enforcement of, or otherwise obtain relief against the adjudication certificates or judgments. The fact that the proceedings involved issues also considered in the adjudications did not justify a stay, because s 32 of the Building and Construction Industry Security of Payment Act 1999 preserves contractual civil proceedings notwithstanding adjudication determinations and resulting judgments. Section 25(4) did not apply and provided no statutory justification for requiring payment into court as a condition of continuing the proceedings.

Jurisdiction
Australia
Judgment Date
09 May 2014
Procedural Posture
Civil Proceedings for Damages for Breach of a Building Contract / Defendant's Notice of Motion for a Stay of Proceedings Under S 67 of the Civil Procedure Act 2005
Outcome
Defendant's notice of motion dismissed with costs.
Legal Topics
['defective Building Work' 'security of Payment Adjudication Certificates' 'stay of Proceedings' 'effect of Adjudication on Civil Proceedings']
['contract' 'building and Construction' 'civil Procedure'] ['defective Building Work' 'security of Payment Adjudication Certificates' 'stay of Proceedings' 'effect of Adjudication on Civil Proceedings']

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Procedural Posture

Civil Proceedings for Damages for Breach of a Building Contract / Defendant's Notice of Motion for a Stay of Proceedings Under S 67 of the Civil Procedure Act 2005

Legal Issues

  1. 1 ["Whether the plaintiff's proceedings for damages for breach of a building contract should be stayed until the plaintiff paid into court amounts equal to judgments obtained by the defendant from adjudication certificates." "Whether the plaintiff's proceedings were proceedings to set aside or circumvent judgments resulting from adjudication certificates within the scope or policy of s 25(4) of the Building and Construction Industry Security of Payment Act 1999." "Whether s 32 of the Building and Construction Industry Security of Payment Act 1999 preserves the plaintiff's right to bring civil proceedings for breach of contract despite adjudication determinations and resulting judgments."]

Ratio Decidendi

The plaintiff's claim was an ordinary claim for damages for breach of contract and did not seek to set aside, restrain enforcement of, or otherwise obtain relief against the adjudication certificates or judgments. The fact that the proceedings involved issues also considered in the adjudications did not justify a stay, because s 32 of the Building and Construction Industry Security of Payment Act 1999 preserves contractual civil proceedings notwithstanding adjudication determinations and resulting judgments. Section 25(4) did not apply and provided no statutory justification for requiring payment into court as a condition of continuing the proceedings.

Court Disposition

Defendant's notice of motion dismissed with costs.

Orders

  • ["Defendant's notice of motion filed 28 April 2014 is dismissed." 'Defendant pay the costs of the notice of motion.']