Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) [2016] NSWCA 382

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) [2016] NSWCA 382

A stay was justified to restrain the enforcement of the adjudication determination pending the potential filing of a special leave application to the High Court, because absent a restraining order there was a significant risk of dissipation of the adjudicated sum, and the principles for the grant of such stays as established in Jennings and Rinehart supported such an outcome, balanced by an undertaking to pay the sum into court.

Parties
Appellant: Shade Systems Pty Ltd; First Respondent: Probuild Constructions (Aust) Pty Ltd; Second Respondent: Doron Rivlin
Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Appeal / Consequential Orders Following Appeal Judgment
Outcome
Stay granted (with conditions)
Legal Topics
Stay of Appeal Judgment, Special Leave to Appeal, Building and Construction Industry Security of Payment Act 1999 (nsw), Balance of Convenience
Civil Procedure Stay of Appeal Judgment Special Leave to Appeal Building and Construction Industry Security of Payment Act 1999 (nsw) Balance of Convenience

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Parties

Shade Systems Pty Ltd

Appellant

Probuild Constructions (Aust) Pty Ltd

First Respondent

Doron Rivlin

Second Respondent

Procedural Posture

Appeal / Consequential Orders Following Appeal Judgment

Legal Issues

  1. 1 Whether a stay should be granted to restrain enforcement of the adjudication determination pending possible application for special leave to appeal to the High Court
  2. 2 Whether subject matter of the litigation (debt) should be preserved

Ratio Decidendi

A stay was justified to restrain the enforcement of the adjudication determination pending the potential filing of a special leave application to the High Court, because absent a restraining order there was a significant risk of dissipation of the adjudicated sum, and the principles for the grant of such stays as established in Jennings and Rinehart supported such an outcome, balanced by an undertaking to pay the sum into court.

Court Disposition

Stay granted (with conditions)

Orders

  • Upon the First Respondent undertaking to pay the sum of $314,504.72 into Court by 5pm on 6 January 2017, the Appellant is restrained from: (a) requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW); (b) filing an...
  • Liberty to apply on two days' notice.