Herscho v Expile Pty Ltd

Herscho Pty Ltd (the claimant) sought a stay of a judgment obtained against Expile Pty Ltd (the opponent) under the *Building and Construction Industry Security of Payment Act 2004* (NSW). The claimant appealed the primary judge's decision to refuse the stay.

The central legal issue before Hodgson JA was whether the claimant had demonstrated a sufficient risk of prejudice to warrant a stay of the judgment pending the determination of its appeal. The court considered the threshold for granting a stay in circumstances where a judgment arises from a statutory regime designed for swift resolution of payment disputes in the building and construction industry.

Hodgson JA reasoned that the claimant needed to establish more than a mere or real risk of prejudice. The court applied the principle that a stay of execution of a judgment, particularly one under the Security of Payment Act, should not be granted lightly. The claimant's submissions regarding potential prejudice were found to be speculative and insufficient to meet the required threshold. Consequently, the court determined that the claimant had not made out a case for a stay.

The Notice of Motion seeking a stay was dismissed, and the claimant was ordered to pay the opponent's costs.