Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234

A stay of the costs order is granted because there is an issue of considerable significance raised by the appeal, the appellant has reasonable prospects of success, and enforcement of the costs order could stultify the appeal by precipitating liquidation. The motion for security for costs is adjourned so the respondent can test the evidence regarding the financial means of those behind the appellant, as refusal of security depends on whether stultification of the appeal would occur.

Jurisdiction
Australia
Judgment Date
29 August 2016
Procedural Posture
Appeal / Interlocutory Decision Before Appeal Hearing
Outcome
Leave granted to amend notice of motion; stay of costs order granted; adjournment of motion for security for costs to Registrar's list; leave to issue subpoenas granted; directions regarding service of subpoenas and hearing date; costs of motions to be costs in the appeal.
Legal Topics
['stay of Costs Order Pending Appeal' 'expedition' 'security for Costs' 'issuing Subpoenas' 'supervisory Jurisdiction Regarding Security of Payment Act Adjudications']
['practice and Procedure' 'construction Law' 'corporate Law'] ['stay of Costs Order Pending Appeal' 'expedition' 'security for Costs' 'issuing Subpoenas' 'supervisory Jurisdiction Regarding Security of Payment Act Adjudications']

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Procedural Posture

Appeal / Interlocutory Decision Before Appeal Hearing

Legal Issues

  1. 1 ['Whether a stay of the costs order pending appeal should be granted' 'Whether security for costs should be ordered or adjourned' 'Whether supervisory jurisdiction extends to non-jurisdictional errors of law under the Security of Payment Act']

Ratio Decidendi

A stay of the costs order is granted because there is an issue of considerable significance raised by the appeal, the appellant has reasonable prospects of success, and enforcement of the costs order could stultify the appeal by precipitating liquidation. The motion for security for costs is adjourned so the respondent can test the evidence regarding the financial means of those behind the appellant, as refusal of security depends on whether stultification of the appeal would occur.

Court Disposition

Leave granted to amend notice of motion; stay of costs order granted; adjournment of motion for security for costs to Registrar's list; leave to issue subpoenas granted; directions regarding service of subpoenas and hearing date; costs of motions to be costs in the appeal.

Orders

  • ['Grant leave to the appellant to amend its notice of motion filed on 17 August 2016.' 'Stay order (4) made in the Equity Division on 15 June 2016 pending the outcome of the appeal.' "Adjourn the first respondent's motion seeking security for its costs of the appeal to the Registrar's list on Monday 12 September...