Black Label Developments Pty Ltd v McMenemy - [2024] NSWDC 516

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Black Label Developments Pty Ltd v McMenemy [2024] NSWDC 516
Hearing dates: 16 October 2024
Date of orders: 18 October 2024
Decision date: 18 October 2024
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision:
1. On condition that the defendant pay into court the judgment sum less the amount recovered already by the plaintiff under garnishee within 7 days that judgment and orders in NSW District Court proceedings 2024/201168 be stayed and pending resolution of 2024/250069
2. I order the plaintiff pay the defendants cost of motion
3. I stand both sets of proceedings over for directions to the List Judge for 15 November 2024

Catchwords:
JUDGMENTS AND ORDERS — STAY - Stay of enforcement of judgment under s.135 Civil Procedure Act 2005 – Judgment obtained under s.26 of the Building and Construction Industry Security of Payment Act 1999 (NSW) - Owner occupier construction contract – Residential building work – Deed of variation of contract – Owner seeks to have deed set aside on grounds of duress, undue influence, unconscionable conduct, misleading or deceptive conduct or pursuant to Contracts Review Act 1980 – Stay granted on condition money paid into Court.

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999
Building and Construction Industry Security of Payment Amendment Regulation 2019
Building and Construction Security of Payment Amendment Act 2018
Building and Construction Security of Payment Regulation 2020
Civil Procedure Act 2005
Contracts Review Act1980
District Court Act 1973
Home Building Act 1989

Cases Cited:
Australia and New Zealand Banking Group LimitedvKaram (2005) 64 NSWLR 149
Bitannia Pty LtdvParklineConstructions Pty Ltd [2006] NSWCA 238
R J Neller Building Pty Ltdv Ainsworth [2009] 1 Qd R 390
TFM Epping Land Pty LtdvDecon Australia Pty Ltd [2020] NSWCA 118
Thornev Kennedy (2017) 263 CLR 85
Webuildem Pty Ltd [2012] NSWSC 708

Texts Cited:
Halsbury's Laws of Australia
NSW Civil Procedure Handbook 2024

Category: Procedural rulings
Parties: Black Label Developments Pty Ltd (Plaintiff)
Nicholas John McMenemy (Defendant)
Representation:
Counsel:
16 October 2024
Mr B Le Plastrier (Plaintiff)
Mr P Horobin (Defendant)

18 October 2024
Ms R Ayache (Solicitor/Plaintiff)
Mr W Attoh (Solicitor/Defendant)
Solicitors:
Doyles Construction Lawyers (Plaintiff)
Legal Made Easy Pty Ltd (Defendant)

File Number(s): 2024/201168
Publication restriction: Nil

JUDGMENT

HIS HONOUR: The plaintiff builder has a judgment against the owner defendant in this Court in the sum of $264,575.99. The builder obtained the judgment by making a payment claim and following the procedures laid out in the Building and Construction Industry Security of Payment Act 1999 (unless otherwise referred to, when I refer to "an Act" or "the Act" in the judgment, that is the Act I am referring to).
The judgment was registered with the Court on 31 May 2024. The owner (Mr. McMenemy) applies, by a notice of motion filed on 2 September 2024, for orders staying the execution of the judgment by the builder pending a resolution of the…

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.

Continue reading Black Label Developments Pty Ltd v McMenemy

Details

AGLC: Black Label Developments Pty Ltd v McMenemy [2024] NSWDC 516
Case: [2024] NSWDC 516
Decision Date: 18 October 2024

CaseChat Overview and Summary

Black Label Developments Pty Ltd sought a stay of a judgment obtained in the NSW District Court by McMenemy, in proceedings concerning a dispute arising from a residential building contract. The initial dispute was related to an owner occupier construction contract, and a deed of variation of the contract. Black Label Developments sought to have the deed set aside on various grounds, including duress, undue influence, unconscionable conduct, and misleading or deceptive conduct, and also under the Contracts Review Act 1980. The Court was required to determine whether the stay should be granted and, if so, on what conditions.

The Court considered whether Black Label Developments' application for a stay met the criteria set out in section 135 of the Civil Procedure Act 2005. It was noted that the applicant had a real prospect of success in setting aside the deed, and that the application would involve complex issues of fact and law. The Court held that the applicant had demonstrated that there were serious issues to be tried, and that the balance of convenience favoured granting a stay. The Court also considered the position of third parties, and was satisfied that it would be just and convenient to grant the stay on the condition that Black Label Developments paid the judgment sum into court.

Accordingly, the Court granted a stay of the enforcement of the judgment and orders in the District Court proceedings, on the condition that Black Label Developments paid the judgment sum into court within 7 days. The Court also ordered that Black Label Developments pay McMenemy's costs of the motion, and that both sets of proceedings be stood over for directions to the List Judge for 15 November 2024. The Court held that the stay was necessary to prevent unfairness and to ensure that the issues raised by the applicant could be properly ventilated in the proceedings.

Orders

Orders of the court

1. On condition that the defendant pay into court the judgment sum less the amount recovered already by the plaintiff under garnishee within 7 days that judgment and orders in NSW District Court proceedings 2024/201168 be stayed and pending resolution of 2024/250069

2. I order the plaintiff pay the defendants cost of motion

3. I stand both sets of proceedings over for directions to the List Judge for 15 November 2024

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Black Label Developments Pty Ltd v McMenemy [2024] NSWDC 516
Hearing dates:	16 October 2024
Date of orders:	18 October 2024
Decision date:	18 October 2024
Jurisdiction:	Civil
Before:	Waugh SC DCJ
Decision:	1. On condition that the defendant pay into court the judgment sum less the amount recovered already by the plaintiff under garnishee within 7 days that judgment and orders in NSW District Court proceedings 2024/201168 be stayed and pending resolution of 2024/250069 2. I order the plaintiff pay the defendants cost of motion 3. I stand both sets of proceedings over for directions to the List Judge for 15 November 2024
Catchwords:	JUDGMENTS AND ORDERS — STAY - Stay of enforcement of judgment under s.135 Civil Procedure Act 2005 – Judgment obtained under s.26 of the Building and Construction Industry Security of Payment Act 1999 (NSW) - Owner occupier construction contract – Residential building work – Deed of variation of contract – Owner seeks to have deed set aside on grounds of duress, undue influence, unconscionable conduct, misleading or deceptive conduct or pursuant to Contracts Review Act 1980 – Stay granted on condition money paid into Court.
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 Building and Construction Industry Security of Payment Amendment Regulation 2019 Building and Construction Security of Payment Amendment Act 2018 Building and Construction Security of Payment Regulation 2020 Civil Procedure Act 2005 Contracts Review Act1980 District Court Act 1973 Home Building Act 1989
Cases Cited:	Australia and New Zealand Banking Group LimitedvKaram (2005) 64 NSWLR 149 Bitannia Pty LtdvParklineConstructions Pty Ltd [2006] NSWCA 238 R J Neller Building Pty Ltdv Ainsworth [2009] 1 Qd R 390 TFM Epping Land Pty LtdvDecon Australia Pty Ltd [2020] NSWCA 118 Thornev Kennedy (2017) 263 CLR 85 Webuildem Pty Ltd [2012] NSWSC 708
Texts Cited:	Halsbury's Laws of Australia NSW Civil Procedure Handbook 2024
Category:	Procedural rulings
Parties:	Black Label Developments Pty Ltd (Plaintiff) Nicholas John McMenemy (Defendant)
Representation:	Counsel: 16 October 2024 Mr B Le Plastrier (Plaintiff) Mr P Horobin (Defendant) 18 October 2024 Ms R Ayache (Solicitor/Plaintiff) Mr W Attoh (Solicitor/Defendant) Solicitors: Doyles Construction Lawyers (Plaintiff) Legal Made Easy Pty Ltd (Defendant)
File Number(s):	2024/201168
Publication restriction:	Nil