Facade Innovations Pty Ltd v Timwin Constructions Pty Ltd

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.