Heather v Taylor Building Industries Pty Ltd [2023] NSWSC 968

Heather v Taylor Building Industries Pty Ltd [2023] NSWSC 968

Application for stay refused; court was not satisfied to the requisite certainty that funds paid to builder would be irrecoverable if plaintiffs succeed in substantive proceedings. Risk of insolvency is legislative policy assigned to principal and does not justify stay where builder incentivised and able to repay judgment sum.

Parties
First Plaintiff: Andrew Heather; Second Plaintiff: Vera Heather; Defendant: Taylor Building Industries Pty Ltd
Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Interlocutory Application / Application to Stay Enforcement of Judgment Following Adjudication Determination
Outcome
Stay refused; application dismissed with costs
Legal Topics
Stay of Enforcement, Adjudication Determination, Cashflow Problems, Security of Payments Legislation
Building and Construction Equity Stay of Enforcement Adjudication Determination Cashflow Problems Security of Payments Legislation

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Parties

Andrew Heather

First Plaintiff

Vera Heather

Second Plaintiff

Taylor Building Industries Pty Ltd

Defendant

Procedural Posture

Interlocutory Application / Application to Stay Enforcement of Judgment Following Adjudication Determination

Legal Issues

  1. 1 Whether a stay of enforcement of judgment should be granted pending substantive proceedings
  2. 2 Risk of irrecoverability if payment made to builder
  3. 3 Impact of builder's solvency on stay application

Ratio Decidendi

Application for stay refused; court was not satisfied to the requisite certainty that funds paid to builder would be irrecoverable if plaintiffs succeed in substantive proceedings. Risk of insolvency is legislative policy assigned to principal and does not justify stay where builder incentivised and able to repay judgment sum.

Court Disposition

Stay refused; application dismissed with costs

Orders

  • Dismiss prayer 1 of the Technology and Construction List Summons with costs.
  • Order that the sum of $174,417.91 held in Court, together with any interest accrued, be paid to the defendant forthwith.