Herscho v Expile Pty Ltd

[2004] NSWCA 468

CITATION:	Herscho v. Expile Pty. Limited [2004] NSWCA 468
HEARING DATE(S):	13 December 2004
JUDGMENT DATE:	13 December 2004
JUDGMENT OF:	Hodgson JA at 1
DECISION:	Notice of Motion dismissed. Claimant ordered to pay the opponent's costs.
CATCHWORDS:	PROCEDURE - Appeal - Stay of judgment - Judgment under Building & Construction Industry Security of Payment Act - Need for more than real risk of prejudice
PARTIES :	Avraham Herscho - claimant Expile Pty. Ltd. - opponent
FILE NUMBER(S):	CA 41057/04
COUNSEL:	Mr. P. Strasser for claimant Mr. M. Southwick for opponent
SOLICITORS:	Denes Ebner, Sydney for claimant Edwin Davey, Sydney for opponent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6017/03
LOWER COURT JUDICIAL OFFICER :	Bishop DCJ

CA 41057/04

HODGSON JA

Monday 13 December 2004

HERSCHO V. EXPILE PTY. LIMITED

Judgment

1 HODGSON JA: I am dealing with an application for a stay in respect of a judgment in the sum of $145,033.83 given in the District Court on 10 November 2004. The judgment was given pursuant to a claim made under s.15(4) of the Building and Construction Industry Security of Payment Act.

2 The appellant seeks a stay on the basis that there are reasonable grounds of appeal, and that if the money is paid there is a real risk that it could not be repaid if the appeal is successful, or if the proceedings that determine the final rights of the parties result in a balance in favour of the appellant.

3 I think it is appropriate for this Court to look both at the question of grounds of appeal and the question of risk that the money if paid will not be recoverable. However, in doing so I would say that I think there is merit in what was said by Justice Einstein in Grosvenor Constructions NSW Pty Limited v Musico [2004] NSWSC 344 at para [31] to [32] to the effect that, having regard to the policy of the Act, there is sound reason for making stays less readily available in such cases, and perhaps looking for more than “a real risk of prejudice” if a stay is not granted.

4 In this case as it has been argued before me, it seems that there are two possible bases of appeal. One is that evidence of accord and satisfaction was rejected, when accord and satisfaction could be a defence to a claim under s.15(4). The other is that evidence was rejected of the assignment of the debt underlying the claim in the payment claims, so that the true creditor was no longer the plaintiff but a third party, and the defendant could have been left in the position of paying the plaintiff and then in addition having to pay the third party to whom the debt had been assigned. Notification of the assignment was given on a later progress claim, that included the amounts in the four payment claims that were the subject of these proceedings.

5 Although these are possible grounds of appeal,…