Facade Innovations Pty Ltd v Timwin Constructions Pty Ltd - [2005] NSWCA 197

CITATION:
Facade Innovations Pty. Ltd. v. Timwin Constructions Pty. Ltd. & Ors. [2005] NSWCA 197

HEARING DATE(S):
8 June 2005

JUDGMENT DATE:

8 June 2005

JUDGMENT OF:
Hodgson JA at 1

DECISION:
1. Ordered that order three made by McDougall J on 1 June 2005 in proceedings 55035/05 for payment out to Timwin of money paid into court be stayed until the judgment entered in favour of Facade in 11729/05 is set aside. 2. Ordered that the costs of this motion be costs in the appeal. 3. Ordered that the appeal be expedited, but not so as to displace matters already fixed for hearing.

CATCHWORDS:
BUILDING AND CONSTRUCTION - PRACTICE - Stay of order - Judgment pursuant to s.25 of Building & Construction Industry Security of Payment Act - Separate proceedings for declaration that adjudication determination was void - Enforcement of judgment stayed on amount being paid into Court - Declaration made and order made for payment out of money - Appeal - Whether order for payment out should be stayed pending setting aside of judgment and/or determination of appeal.

LEGISLATION CITED:
Building & Construction Industry Security of Payment Act 1999 s.25

CASES CITED:
Herscho v. Expile Pty. Limited [2004] NSWCA 468
McLaughlin's Family Restaurant v. Cordukes Limited [2004] NSWCA 447

PARTIES:
Facade Innovations Pty. Limited - appellant
Timwin Constructions Pty. Ltd. - 1st respondent

FILE NUMBER(S):
CA 40457/05

COUNSEL:
Mr. N.A. Nicholls for appellant
Mr. M. Christie with V. Culkoff for 1st respondent

SOLICITORS:
Doyles, Sydney for appellant
David Campbell-Williams, Sydney for 1st respondent

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC55035/05

LOWER COURT JUDICIAL OFFICER:
McDougall J

CA 40457/05

HODGSON JA
Wednesday 8 June 2005

FACADE INNOVATIONS PTY. LTD. V. TIMWIN CONSTRUCTIONS PTY. LTD.

Judgment

1 HODGSON JA: I am dealing with an application for a stay of an order made by McDougall J on 1 June 2005 for payment out to the first respondent (Timwin) of money paid into court by Timwin. The money was paid into court in these circumstances.

2 The appellant (Facade) was a subcontractor in a building project conducted by Timwin. Facade served on Timwin a payment claim under the Building and Construction Industry Security of Payment Act 1999 on 14 March 2005, claiming $498,664.

3 That led to an adjudication procedure under the Act, resulting in an adjudication determination that Facade was entitled to a progress payment of the whole amount claimed. Facade then obtained a judgment for that amount, pursuant to s25 of the Act, in the Supreme Court.

4 Timwin commenced separate proceedings in the Supreme Court, seeking a judgment that the adjudication determination was void. In the course of those proceedings, Timwin paid into court a sum of just over $500,000, representing the result of the adjudication determination, and the court ordered that Facade take no steps to enforce its judgment until further order.

5 On 1 June 2005, McDougall J decided that the adjudication determination was void and ordered that the money paid…

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 Facade Innovations Pty Ltd v Timwin Constructions Pty Ltd

Details

AGLC: Facade Innovations Pty Ltd v Timwin Constructions Pty Ltd [2005] NSWCA 197
Case: [2005] NSWCA 197
Decision Date: 8 June 2005

CaseChat Overview and Summary

Facade Innovations Pty Ltd appealed an order of McDougall J concerning money paid into court in proceedings between Facade Innovations Pty Ltd and Timwin Constructions Pty Ltd. The dispute arose from a judgment entered in favour of Timwin pursuant to s.25 of the *Building and Construction Industry Security of Payment Act 1999* (NSW). Facade had sought a declaration that the adjudication determination underlying this judgment was void, and the enforcement of the judgment had been stayed upon payment of the judgment sum into court. McDougall J had subsequently made a declaration and ordered the payment out of this money to Timwin.

The primary legal issue before the Court of Appeal was whether the order for payment out of the money held in court should be stayed pending the setting aside of the judgment and/or the determination of the appeal. This involved considering the interplay between the enforcement of a judgment under the *Security of Payment Act* and separate proceedings challenging the validity of the underlying adjudication determination.

Hodgson JA considered the potential prejudice to Facade if the money were paid out to Timwin and the judgment in favour of Timwin was later set aside. The court reasoned that if the judgment were set aside, Timwin would have no basis to retain the money, and its recovery from Timwin might be difficult. Accordingly, the court determined that it was appropriate to stay the order for payment out of the money to Timwin until such time as the judgment entered in favour of Timwin was set aside.

The Court of Appeal ordered that the order made by McDougall J for payment out of the money paid into court to Timwin be stayed until the judgment entered in favour of Facade in the separate proceedings was set aside. The costs of the motion were made costs in the appeal, and the appeal was expedited.

Orders

Orders of the court

1. Ordered that order three made by McDougall J on 1 June 2005 in proceedings 55035/05 for payment out to Timwin of money paid into court be stayed until the judgment entered in favour of Facade in 11729/05 is set aside. 2. Ordered that the costs of this motion be costs in the appeal. 3. Ordered that the appeal be expedited, but not so as to displace matters already fixed for hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Facade Innovations Pty. Ltd. v. Timwin Constructions Pty. Ltd. & Ors. [2005] NSWCA 197
HEARING DATE(S):	8 June 2005
JUDGMENT DATE:	8 June 2005
JUDGMENT OF:	Hodgson JA at 1
DECISION:	1. Ordered that order three made by McDougall J on 1 June 2005 in proceedings 55035/05 for payment out to Timwin of money paid into court be stayed until the judgment entered in favour of Facade in 11729/05 is set aside. 2. Ordered that the costs of this motion be costs in the appeal. 3. Ordered that the appeal be expedited, but not so as to displace matters already fixed for hearing.

CATCHWORDS:	BUILDING AND CONSTRUCTION - PRACTICE - Stay of order - Judgment pursuant to s.25 of Building & Construction Industry Security of Payment Act - Separate proceedings for declaration that adjudication determination was void - Enforcement of judgment stayed on amount being paid into Court - Declaration made and order made for payment out of money - Appeal - Whether order for payment out should be stayed pending setting aside of judgment and/or determination of appeal.
LEGISLATION CITED:	Building & Construction Industry Security of Payment Act 1999 s.25
CASES CITED:	Herscho v. Expile Pty. Limited [2004] NSWCA 468 McLaughlin's Family Restaurant v. Cordukes Limited [2004] NSWCA 447
PARTIES:	Facade Innovations Pty. Limited - appellant Timwin Constructions Pty. Ltd. - 1st respondent
FILE NUMBER(S):	CA 40457/05
COUNSEL:	Mr. N.A. Nicholls for appellant Mr. M. Christie with V. Culkoff for 1st respondent
SOLICITORS:	Doyles, Sydney for appellant David Campbell-Williams, Sydney for 1st respondent

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC55035/05
LOWER COURT JUDICIAL OFFICER:	McDougall J