Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd [2008] NSWDC 236

Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd [2008] NSWDC 236

In the absence of evidence of insolvency or risk that monies paid would be irrecoverable, and given the legislative intention of the Building and Construction Industry Security of Payments Act 1999 (NSW) to provide for prompt payment, the Court declined to grant a stay of execution of the judgment even though the Defendant had a prima facie cross-claim alleging misleading or deceptive conduct under the Trade Practices Act 1974 (Cwth).

Parties
Plaintiff: Stone Will Pty Ltd; Defendant: CMS Group (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
15 October 2008
Procedural Posture
Civil / Interlocutory Application for Stay of Execution of Judgment
Outcome
Defendant's motion for stay dismissed; costs awarded to Plaintiff
Legal Topics
Stay of Execution, Security of Payment, Misleading or Deceptive Conduct, Cross Claim, Set Off
Building and Construction Law Civil Procedure Stay of Execution Security of Payment Misleading or Deceptive Conduct Cross Claim Set Off

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Parties

Stone Will Pty Ltd

Plaintiff

CMS Group (NSW) Pty Ltd

Defendant

Procedural Posture

Civil / Interlocutory Application for Stay of Execution of Judgment

Legal Issues

  1. 1 Does the Defendant have a prima facie case for a cross-claim under the Trade Practices Act 1974 (Cwth)?
  2. 2 Should the Court exercise its discretion to grant a stay of execution of the Judgment founded on the Adjudicator's Determination?

Ratio Decidendi

In the absence of evidence of insolvency or risk that monies paid would be irrecoverable, and given the legislative intention of the Building and Construction Industry Security of Payments Act 1999 (NSW) to provide for prompt payment, the Court declined to grant a stay of execution of the judgment even though the Defendant had a prima facie cross-claim alleging misleading or deceptive conduct under the Trade Practices Act 1974 (Cwth).

Court Disposition

Defendant's motion for stay dismissed; costs awarded to Plaintiff

Orders

  • The Amended Notice of Motion filed on 1 October 2008 is dismissed.
  • The Defendant is to pay the Plaintiff's costs of the motion and of the Cross-Claim.