ASEA 1 Pty Ltd v Rudyard Pty Ltd - [2020] VSCA 122

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2019 0133

ASEA 1 PTY LTD (ACN 632 241 724)	Applicant
v
RUDYARD PTY LTD (ACN 605 072 115)	Respondent

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JUDGES:	KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2020
DATE OF JUDGMENT:	13 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 122
JUDGMENT APPEALED FROM:	[2019] VCC 1995 (Judge Woodward)

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PRACTICE AND PROCEDURE – Application for a stay of execution of judgment – No material risk that appeal rendered nugatory in absence of a stay – Refusal of a stay would not result in discontinuance of appeal – Respondent entitled to benefit of judgment – Application for a stay refused – Supreme Court (General Civil Procedure) Rules 2015 rr 64.39 and 66.16.

PRACTICE AND PROCEDURE – Costs – Application by respondent for security for costs – Real risk that costs order would not be satisfied – Security for costs would not result in discontinuance – Applicant ordered to provide security for costs in the amount of $35,000 – Supreme Court (General Civil Procedure) Rules 2015 r 64.38(2) – Australian Dream Homes Pty Ltd v Stojanovski [2016] VSCA 38, Timbercorp Finance Pty Ltd (in liq) v Tomes [2015] VSCA 322, Jafari v 23 Developments Pty Ltd [2019] VSCA 16 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H Foxcroft QC with Mr A Blair	Welner Lawyers
For the Respondent	Dr M Wolff	Noble Lawyers Pty Ltd

KAYE JA
McLEISH JA:

The respondent (‘Rudyard’) brought a proceeding by Originating Motion in the County Court against the applicant (‘ASEA’), by which it applied, by summons, for judgment under s 16(2) of the Building and Construction Industry Security of Payment Act 2002 (‘the Security of Payment Act’). The claim by Rudyard arose out of works performed by it pursuant to a contract with ASEA dated 10 April 2019 for a proposed 28 residential apartment development in Plenty Road, Preston. The judge, who heard the claim, gave judgment in favour of Rudyard in the sum of $343,750 (including GST) together with interest at the rate of 20 per cent per annum from 23 July 2019.[1] ASEA has sought leave to appeal against the whole of the decision.
[1]Rudyard Pty Ltd v ASEA 1 Pty Ltd [2019] VCC 1995 (Judge Woodward).

The Court has before it two applications, namely:

(1)An application by ASEA for a stay of the order made by the judge.
(2)An application by Rudyard that ASEA give security for Rudyard’s costs relative to the application for leave to appeal in the amount of $75,000.

Background

The claim by Rudyard was based on three payment claims it had made on ASEA, pursuant to s 14 of the Security of Payment Act, totalling $343,750 (including GST), dated 24 April, 25 May and 29 June 2019 respectively. ASEA opposed judgment on three principal bases. First, it contended, the payment claims had not been properly served on ASEA. Secondly, it was contended that the payment claims each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSCA 122
Decision Date: 13 May 2020

CaseChat Overview and Summary

ASEA 1 Pty Ltd sought a stay of execution of a judgment entered against it by the court in favour of Rudyard Pty Ltd. The dispute arose from a contractual matter between the two parties. The application was heard in the Supreme Court. The court had to determine whether there was a material risk that the appeal against the judgment would be rendered nugatory if the stay was not granted. Additionally, the court had to consider whether refusal of a stay would result in the discontinuance of the appeal, and whether the respondent was entitled to the benefit of the judgment.

The court found that there was no material risk that the appeal would be rendered nugatory if the stay was not granted, and that refusal of a stay would not result in the discontinuance of the appeal. The respondent was entitled to the benefit of the judgment. Therefore, the application for a stay of execution was refused. The court relied on the relevant rules of the Supreme Court (General Civil Procedure) Rules 2015 and considered relevant case law.

Rudyard Pty Ltd applied for security for costs, arguing that there was a real risk that the costs order would not be satisfied if the appeal was unsuccessful. The applicant argued that security for costs would result in the discontinuance of the appeal. The court found that security for costs would not result in the discontinuance of the appeal, and ordered the applicant to provide security for costs in the amount of $35,000. The court referred to relevant case law and the relevant rule of the Supreme Court (General Civil Procedure) Rules 2015.

The court's final orders were that the application for a stay of execution of judgment was refused and that the applicant was ordered to provide security for costs in the amount of $35,000.

Orders