Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd (No 2)

[2023] FCA 1482

FEDERAL COURT OF AUSTRALIA

Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd (No 2) [2023] FCA 1482  

File number(s):	ACD 64 of 2023
Judgment of:	JACKMAN J
Date of judgment:	27 November 2023
Date of publication of reasons:	28 November 2023
Catchwords:	PRACTICE AND PROCEDURE – application for stay of orders for the release of money paid into Court and the release of the first respondent from an undertaking not to enforce an adjudication determination – where no evidence led regarding the solvency of the first respondent – application dismissed
Legislation:	Building and Construction Industry (Security of Payments) Act 1999 (NSW)
Cases cited:	A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144
Division:	General Division
Registry:	Australian Capital Territory
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	3
Date of hearing:	27 November 2023
Counsel for the Applicant:	Mr P Walker SC
Solicitor for the Applicant:	HFW Australia
Counsel for the First Respondent:	Mr D L Cook SC
Solicitor for the First Respondent:	Crisp Law
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance

ORDERS

ACD 64 of 2023

BETWEEN:

DICKSON DEVELOPMENTS PRECINCT 1 PTY LTD

Applicant

AND:

CORE BUILDING GROUP PTY LTD

First Respondent

MAX TONKIN

Second Respondent

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	27 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application by the applicant for a stay of paragraph 3 of my orders of 27 November 2023 be dismissed.

2.The applicant pay the first respondent’s costs of that application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

JACKMAN J:

1. In this matter the applicant applies for a stay for 14 days of orders providing for the release of the money paid into Court together with the release of the first respondent from the undertaking which it gave on 3 November 2023. There is no evidence that has been relied upon in support of that application.

2. In A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 at [26], the Court (comprising Payne JA, Simpson AJA and Basten AJA) said that where it is certain that the principal will suffer irreparable prejudice, it would generally be a proper exercise of the Court’s discretion to grant a stay, and the extent or certainty of the risk of prejudice must be closely examined in each case and will depend, in part, on the merit of the principal’s claim under the contract. However, the Court said that the policy of the Building and Construction Industry (Security of Payments) Act 1999 (NSW) (the Act) is not to encourage a searching examination into the solvency of those who receive payments made pursuant to the Act when contractual proceedings are contemplated or pending. Further, the Court said at [31] that there is a heavy burden on a party which seeks injunctive relief or a stay pending the outcome of proceedings contemplated by the Act on the basis that a payment may become unrecoverable due to the possible or even likely insolvency of the payee at a later date. The Court said that considerable caution should attend the grant of such an injunction or a stay as to do so may detract from the primary purpose of the Act.

3. In the present case, there is no evidence before me at all pertaining to the solvency or otherwise of the first respondent and no basis on which I could conclude that the release of the monies paid into Court into the hands of the first respondent would cause any prejudice, let alone irreparable prejudice, to the applicant. In those circumstances, I refuse the application for a stay. The first respondent seeks an order for costs of the application for a stay, and I regard that order as appropriate.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Associate:

Dated:       28 November 2023