Jeffcott v Davesi Construction Group Pty Ltd (No 3)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Jeffcott v Davesi Construction Group Pty Ltd (No 3)

Citation: 

[2025] ACTSC 1

Hearing Date: 

20 January 2025

Decision Date: 

21 January 2025

Before:

Mossop J

Decision: 

(1)     The application in proceeding dated 14 January 2025 is dismissed.

(2)     The defendant is to pay the plaintiff’s costs of the application in proceeding dated 14 January 2025.

Catchwords: 

PRACTICE AND PROCEDURE – APPLICATION – Application by defendant for stay of judgment of primary judge pending appeal by defendant – winding up proceedings initiated by plaintiff based on judgment – where prospects of appeal not obviously strong but arguable – where no financial evidence led by defendant company or those standing behind it – stay not granted

Legislation Cited: 

Evidence Act 2011 (ACT), s 79

Cases Cited: 

Challenge Charter Pty Ltd v Curtain Brothers (Queensland) Pty Ltd [2004] VSCA 66; 9 VR 382

Hoy v Hurst-Meyers (No 3) [2023] ACTSC 6

Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133

Jeffcott v Davesi Construction Group Pty Ltd [2024] ACTSC 366

Kalifair Pty Ltd v Digi-Tech (Australia) Limited [2002] NSWCA 383; 55 NSWLR 737

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Parties: 

Mark Jeffcott ( Plaintiff)

Davesi Construction Group Pty Ltd ( Defendant)

Representation: 

Counsel

A Greinke ( Plaintiff)

Z Mason ( Defendant)

Solicitors

Chamberlains Law Firm ( Plaintiff)

Adero Law ( Defendant)

File Number:

SC 532 of 2021

MOSSOP J:  

Introduction

1․This is an application for a stay of a judgment given by Baker J pending the hearing of an appeal in the Court of Appeal. The application was brought before me yesterday as duty judge during the term break. Such an application would ordinarily be made to the primary judge or to the Court of Appeal which may, for that purpose, be constituted by a single judge. However, no party took any issue about the application being dealt with by a single judge of the Supreme Court other than the primary judge.

2․The case before the primary judge was a building case. The plaintiff, a part owner of property, sued the defendant, a licensed builder, for damages arising out of a building contract and a project management contract. The judgment of Baker J was given on 15 November 2024. Her Honour found that the plaintiff was entitled to damages from the defendant of $241,131.69: Jeffcott v Davesi Construction Group Pty Ltd [2024] ACTSC 366 (hereafter cited as the ‘PJ’).

3․Shortly after the judgment was handed down, the plaintiff served a statutory demand on the defendant based on the judgment. The defendant made no application to set that statutory demand aside. The plaintiff then applied for the winding up of the defendant and the first return date of that application is 14 February 2025.

4․The application for a stay is put on the basis that if the winding up proceeds, then the appeal will be frustrated in circumstances where it would otherwise have reasonable prospects.

The…