Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd

Advanced Building Systems Pty Ltd (the applicant) sought a stay of the enforcement of a costs order made against it in favour of Ramset Fasteners (Aust) Pty Ltd (the respondent), pending the applicant's appeal to the High Court of Australia. Special leave to appeal had been granted by the High Court.

The central legal issue before McHugh J was the principles governing the exercise of the court's discretion to grant a stay of enforcement of a costs order when special leave to appeal to the High Court has been granted. Specifically, the court was required to determine whether the applicant must demonstrate exceptional circumstances to succeed in such an application.

McHugh J reasoned that the power to grant a stay of a costs order pending an appeal to the High Court is discretionary. While special leave to appeal having been granted is a significant factor, it does not automatically entitle an applicant to a stay. The court considered the principles established in previous High Court decisions, which indicate that a stay should only be granted in circumstances where there is a real risk that the appeal will be rendered nugatory if the stay is not granted, or where there are other compelling reasons. The applicant failed to demonstrate such circumstances, and the court found no reason to depart from the general rule that a successful party should not be delayed in enforcing a costs order.

Consequently, the application for a stay was refused, and the applicant was ordered to pay the respondent's costs.