FEDERAL COURT OF AUSTRALIA
Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd (No 3) [2023] FCA 1518
File number(s): ACD 64 of 2023 Judgment of: BURLEY J Date of judgment: 30 November 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking a stay of orders for the release of money paid into Court pending the determination of an appeal in the proceedings – where an oral application for a stay already made before the primary judge – where the evidence adduced as to the solvency of the first respondent insufficient to establish entitlement to relief in the context – application dismissed Legislation: Federal Court Rules 2011 (Cth) rr 36.08, 36.08(2)
Building and Construction Industry (Security of Payments) Act 2009 (ACT) ss 27(4), 38
Building and Construction Industry Security of Payment Act 1999 (NSW) ss 25(4), 32
Cases cited: A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144
Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd [2023] FCA 1473
Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd (No 2) [2023] FCA 1482
Esco Corp v Packaging Logo Mining Pty Ltd [2008] FCA 1018
Powerflex Services Pty Ltd v Data Access Corporation [1996] FCA 460; (1996) 67 FCR 65
Re Middle Harbour Investment Ltd (In liq) (unreported, New South Wales Court of Appeal, 15 December 1976)
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 19 Date of hearing: 29 November 2023 Counsel for the Applicant: Mr B Buckland 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:
BURLEY J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The interlocutory application dated 29 November 2023 be dismissed.
2.The applicant pay the first respondent’s costs of the interlocutory application.
3.In relation to the order made on 27 November 2023, the amount of money held by the Court as a result of the applicant’s payment into Court pursuant to paragraph 1 of the orders of 3 November 2023 be released to the first respondent forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
The applicant, Dickson Developments Precinct 1 Pty Ltd, seeks an order in accordance with Federal Court Rules 2011 (Cth) (FCR) r 36.08(2) for a stay of execution of orders made by the Court on 27 November 2023 until such time as the applicant’s Notice of Appeal dated 29 November 2023 is heard and determined by the Full Court. It relies on an affidavit affirmed by Johnny Roso, the applicant’s sole director, dated 29…
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- Case
- [2023] FCA 1518
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the applicant had demonstrated a serious question to be tried and whether Core’s solvency was in doubt such that there was a risk of prejudice to the applicant if the money were released. The applicant argued that Core had failed to reinstate the security held by Dickson, indicating a lack of financial capacity. The court had to weigh the evidence provided by the applicant against Core's position, including affidavits from Core's construction manager. The court considered whether the evidence was sufficient to establish a serious question to be tried and whether Core's solvency was sufficiently in doubt to justify a stay.
The court dismissed the interlocutory application, finding that the evidence adduced did not establish a serious question to be tried nor did it demonstrate that Core’s solvency was in doubt to the extent necessary to justify a stay. The court was not persuaded that the applicant had met the threshold for granting a stay, particularly given the absence of concrete evidence of Core’s financial instability. The court concluded that there was no basis upon which it could conclude that the release of the monies paid into Court would cause any prejudice to Dickson.
The orders of the court were that the interlocutory application be dismissed, that the applicant pay the first respondent’s costs of the interlocutory application, and that the amount held by the Court as a result of the applicant’s payment into Court be released to the first respondent forthwith. The decision highlights the stringent requirements for obtaining an interlocutory stay in such proceedings, particularly in the context of construction adjudications and the statutory scheme under the Building and Construction Industry (Security of Payments) Act 2009 (ACT).
Orders
Orders of the court
1. The interlocutory application dated 29 November 2023 be dismissed.
2. The applicant pay the first respondent’s costs of the interlocutory application.
3. In relation to the order made on 27 November 2023, the amount of money held by the Court as a result of the applicant’s payment into Court pursuant to paragraph 1 of the orders of 3 November 2023 be released to the first respondent forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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