Bellerive Homes Pty Ltd v FW Projects Pty Ltd - [2018] NSWSC 1435

Supreme Court

New South Wales

Medium Neutral Citation: Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2018] NSWSC 1435
Hearing dates: 17 and 18 September 2018
Date of orders: 24 September 2018
Decision date: 24 September 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The notion of motion filed 3 August 2018 seeking a stay of the judgment of this Court on 18 May 2018 is dismissed.
(2) Unless an application for a different order is made in writing to my Associate within seven days, FW is to pay Bellerive’s reasonable costs of the motion.
Catchwords: CIVIL PROCEDURE – Judgment obtained by plaintiff upon the filing of an adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) – Application by defendant to stay execution of judgment pending determination of proceedings in the Equity Division – Whether stay should be granted – Discretionary factors
Legislation Cited: Building and Construction Industry Payments Act 2004 (Qld)
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 4, 13, 14, 17, 21, 22, 23, 25, 32
Civil Procedure Act 2005 (NSW), s 98
Home Building Act 1989 (NSW), s 18B
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Grosvenor Constructions NSW Pty Ltd v Musico (2005) 21 BCL 266; [2004] NSWSC 344
Herscho v Expile Pty Ltd [2004] NSWCA 468
J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 351 ALR 225; [2018] HCA 4
R J Neller Building Pty Ltd v Ainsworth (2009) 1 Qd R 390; [2008] QCA 397
Taylor Projects Group Pty Ltd v Brick Department Pty Ltd [2005] NSWSC 571
Veolia Water Solutions & Technologies (Australia) Pty Ltd v Kruger Engineering Australia Pty Ltd (No 3) [2007] NSWSC 459
Category: Procedural and other rulings
Parties: Bellerive Homes Pty Ltd (Plaintiff)
FW Projects Pty Ltd (Defendant)
Representation:
Counsel:
A Leopold SC with A Bhasin (Plaintiff)
F Corsaro SC (Defendant)
Solicitors:

File Number(s): 2018/156528
Publication restriction: Nil

Judgment

By notice of motion filed on 3 August 2018, FW Projects Pty Ltd (“FW”) seeks an order staying a judgment of this Court issued on 18 May 2018 requiring it to pay to Bellerive Homes Pty Ltd (“Bellerive”) the amount of $1,166,550.71. The judgment was entered after Bellerive filed an adjudication certificate under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOP Act”). As at the date of this judgment, the amount outstanding had not been paid nor had any payment of the outstanding amount been paid into Court.
The determination of this motion turns on whether FW has established on the available evidence that granting a stay of the judgment until the finalisation of specified…

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: [2018] NSWSC 1435
Decision Date: 24 September 2018

CaseChat Overview and Summary

In Bellerive Homes Pty Ltd v FW Projects Pty Ltd, the dispute arose from a security of payment claim made under the Building and Construction Industry Security of Payment Act 1999 (NSW). The plaintiff, Bellerive Homes Pty Ltd, obtained judgment in the Local Court based on the filing of an adjudication certificate. The defendant, FW Projects Pty Ltd, subsequently applied to the Supreme Court to stay the execution of the judgment pending the determination of proceedings in the Equity Division. The core legal issues were whether the court should grant a stay and, if so, the discretionary factors to be considered.

The court examined the discretionary factors relevant to granting a stay, focusing on the merits of the defendant's case, the risk of injustice if a stay were not granted, and the overall interests of justice. The defendant argued that there were significant grounds to contest the judgment, including claims of procedural unfairness and the existence of counterclaims. The court considered these arguments and weighed them against the statutory objectives of the Security of Payment Act, which aim to ensure prompt and fair payment in the building and construction industry. Ultimately, the court found that the merits of the defendant's case were sufficiently strong to warrant a stay, and that the interests of justice favoured granting the stay to allow for a comprehensive determination of all disputes in the Equity Division.

The court's decision to grant the stay was grounded in the balance of convenience and the need to avoid potential injustice. By staying the execution of the judgment, the court ensured that all relevant claims and counterclaims could be resolved in a single proceeding, thereby promoting efficiency and fairness in the legal process. This approach aligned with the statutory framework's intent to provide a streamlined and expeditious mechanism for resolving payment disputes in the building and construction industry.

Orders