Kemourtzis v Brennan Constructions (NSW) Pty Ltd

[2025] NSWDC 285

District Court

New South Wales

Medium Neutral Citation:

Kemourtzis v Brennan Constructions (NSW) Pty Ltd [2025] NSWDC 285

Hearing dates:

24 July 2025

Date of orders:

04 August 2025

Decision date:

04 August 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1) Prayer 2 and prayer 6 of the plaintiff’s Notice of Motion filed on 2 July 2025 are refused.

(2) Prayer 1 of the defendant’s Notice of Motion filed on 16 July 2025 is refused.

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — application to amend statement of claim - whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for a freezing order– whether the payment of security for costs should be required

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Design and Building Practitioners Act 2020 (NSW)

Home Building Act 1989 (NSW)

Uniform Civil Procedure Rules 2005

Cases Cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156

Duynstee v Dickens [2011] NSWSC 408

McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63

The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068

Category:

Procedural rulings

Parties:

Nickolas Kemourtzis (Plaintiff)
Brennan Constructions (NSW) Pty Ltd (Defendant)

Representation:

Counsel:
M Auld (Plaintiff)
M Swanson (Defendant)

Solicitors:
Stewart Law (Plaintiff)
Makinson d'Apice Lawyers (Defendant)

File Number(s):

2025/175335

JUDGMENT

1. This judgment deals with the applications in three Notices of Motion filed in these proceedings.

2. The plaintiff, Mr Nickolas Kemourtzis, commenced the proceedings by filing a Statement of Claim on 7 May 2025. The claim concerns a “cost-plus” contract entered into by Mr Kemourtzis and Brennan Constructions (NSW) Pty Ltd (“the Builder”), on 12 June 2021 (“the contract”), for the completion of the demolition of an existing house on a parcel of land (“the land”) and the building of a new house. The Builder is the sole defendant to the Statement of Claim. A Defence has not yet been filed.

3. The Statement of Claim, in clause 18 says that the Builder terminated the contract on 17 February 2025.

4. In the Statement of Claim, Mr Kemourtzis claims that the Builder is in breach of the contract and that, by reason of the breach pleaded, Mr Kemourtzis has suffered loss.

5. The sole director and shareholder of the Builder is Mr Sean Brennan.

6. At the hearing of the Notices of Motion, an affidavit of Mr Steven Song (16 July 2025), two affidavits of Mr Lee Hooks (16 July 2025 and 21 July 2025) and an affidavit of Mr Brennan (16 July 2025) were provided. Mr Brennan was required for cross-examination and, accordingly, gave oral evidence.

Prior action under the Building and Construction Industry Security of Payment Act 1999

7. The Builder sought relief against Mr Kemourtzis under the Building and Construction Industry Security of Payment Act 1999 (‘the SOPA’) in relation to unpaid invoices for building work performed under the contract. The matter proceeded to adjudication under the SOPA.

8. The adjudicator made a determination in favour of the Builder in the sum of $345,059.10.

9. On 16 January 2025, an order was issued by the District Court against Mr Kemourtzis, under the SOPA in case number 2025/00018851 Brennan Constructions (NSW) Pty Ltd v Kemourtzis, ordering him to pay the Builder $345,285.10 (which included filing fees).

10. Mr Kemourtzis has failed to pay the amount ordered, or any amount. A garnishee order has now been issued against him.

The plaintiff’s Notice of Motion filed on 2 July 2025

11. It is common ground that a contract for the sale of Mr and Mrs Brennan’s home was entered into on 19 July 2025 (‘the Brennan’s property’).

12. In his Notice of Motion filed on 2 July 2025, Mr Kemourtzis seeks an order requiring, in summary, that the proceeds from the sale of the Brennan’s home be applied firstly to discharge the existing mortgages, secondly to pay the costs of the sale, and, thirdly, that the whole or part of the balance of the proceeds be paid into Court (‘the freezing order’).

13. Mr Kemourtzis also seeks orders restraining Mr Brennan and Mrs Brennan from further encumbering the Brennan’s property until further order. An order for the disclosure of extensive financial information is also sought, together with other ancillary orders.

14. Mr Kemourtzis also seeks leave to file an amended statement of claim “in the form provided to the defendant’s solicitors on 19 June 2025”.

15. The orders against Mr Brennan are sought on the basis of an expectation that he will be given leave to file the draft amended statement of claim, because the existing statement of claim does not name any defendant apart from the Builder. The basis upon which Mr Kemourtzis seeks orders against Mrs Brennan is not clear, because she is not named as a defendant in the draft statement of claim and there are no allegations against her.

The application to file the amended statement of claim

16. The proposed amendments to the statement of claim include the following:

• The addition to the relief claimed of the following:

The Judgment entered 16 January 2025 and all costs orders in proceedings 2025/00018851 be set aside.

• The addition of Mr Brennan as the second defendant.

• Allegations that three of the invoices for which the Builder claimed in “its payment claims/tax invoices” Mr Kemourtzis was liable “were not carried out for or conducted on the Property as evidenced by the actual invoices”.

• An allegation that the Builder “purported to charge for works that were not carried out for or conducted on the property”.

• Allegations that the Builder had failed to provide a supporting statement under s 13(7) of the SOPA in relation to some of the Builder’s payment claims, and allegations that supporting statements served by the Builder with other payment claims were false.

• Allegations that the Builder breached warranties implied into the contract by s 18B of the Home Building Act 1989 (NSW) in that the Builder:

• Did not complete the works by the due date of completion pursuant to the Building Contract;

• Did not complete the works, and

• Did not undertake the works with due diligence.

• Allegations that itemised elements of the works were defective.

• Allegations that the Builder repudiated the contract

• Allegations that the Builder and Mr Brennan owed Mr Kemourtzis a duty of care under s 37 of the Design and Building Practitioners Act 2020 (NSW) and breached that duty of care in that they each:

• Failed to properly instruct, plan, carry out, supervise, review and/or inspect the materials and works as the construction work was carried out;

• Failed to perform the work with due care and skill;

• Failed to perform the works in a proper and workmanlike manner and in accordance with any plans and specifications;

• Failed to ensure that all materials supplied for use in the works would be good and suitable for the purpose for which they were used;

• Failed to perform the works in accordance with any and all applicable laws;

• Failed to perform the works with due diligence; and

• Failed to perform the works in such a way so as to not expose the plaintiff to the risk of loss and damage.

17. The plaintiff’s application to file an amended statement of claim was opposed by the Builder.

18. The Builder argued that the District Court does not have the power to set aside the orders in case number 2025/00018851 in these proceedings or at all. I agree. The plaintiff did not identify the source of such a power for the District Court. The Builder pointed out that the plaintiff sought only to set aside the District Court judgment, so that the adjudication under the SOPA would remain in effect. The plaintiff submitted that his intention in seeking the new relief set out in the draft amended statement of claim was to provide for a set-off of the damages sought in these proceedings against the judgment already given in case number 2025/00018851. There is no permissible procedure by which such a set-off could be achieved in these proceedings.

19. The Builder further argued that the allegations of non-compliance with the SOPA by the Builder in the draft amended statement of claim do not disclose a cause of action. Again, I agree. Those allegations do not have a relationship with the claims the subject of the proceedings as set out in the amended statement of claim.

20. The only claim against Mr Brennan which is pleaded in the draft amended statement of claim is a claim under the Design and Building Practitioners Act 2020 (NSW) (‘the DBPA’), which is also pleaded against the Builder.

21. The DBPA says, in s 37:

37   Extension of duty of care

(1)  A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects—

(a)  in or related to a building for which the work is done, and

(b)  arising from the construction work.

(2)  The duty of care is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of the land.

(3)  A person to whom the duty of care is owed is entitled to damages for the breach of the duty as if the duty were a duty established by the common law.

(4)  The duty of care is owed to an owner whether or not the construction work was carried out—

(a)  under a contract or other arrangement entered into with the owner or another person, or

(b)  otherwise than under a contract or arrangement.

22. The draft amended statement of claim asserts elements of the duty of care which it says s 37 encompasses. It asserts, for the purpose of s 5B(1) of the Civil Liability Act 2002 (NSW) that the risk of harm was foreseeable, was not insignificant and “a reasonable person in the Builder’s position would have taken precautions for that risk”. The draft amended statement of claim asserts, for the purpose of section 5B(2) of the Civil Liability Act 2002 (NSW) that a reasonable person who undertook the construction works would have taken precautions in carrying out those works against the risk of harm.

23. The draft amended statement of claim says, in clauses 41 and 42:

41.   In breach of the Duty of Care, each of the Builder and Mr Brennan:

(a)   failed to properly instruct, plan, carry out, supervise, review and/or inspect the materials and works as the construction work was carried out;

(b)   failed to perform works with due care and skill;

(c)   failed to perform the works in a proper and workmanlike manner and in accordance with any plans and specifications;

(d)   failed to ensure that all materials supplied for use in the works would be good and suitable for the purpose for which they were used;

(e)   failed to perform the works in accordance with any and all applicable laws;

(f)   failed to perform the works with due diligence; and

(g)   failed to perform the works in such a way as to not expose the plaintiff to the risk of loss and damage,

(collectively, “the Duty of Care Breaches”)

42.   As a result of the Duty of Care Breaches, the Homeowner has suffered loss and damage.

Particulars

(1)   The cost of rectifying the defects.

(2)   Additional cost to complete, including price rises.

(3)   Costs of alternative accommodation/loss of potential rental income.

(4)   Additional interest payments on finance.

(5)   Costs of investigation.

24. In The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068 (‘Loulach’) at [40] – [44], Stevenson J said:

40.   In Garzo v Liverpool/Campbelltown Christian School, [5] Meagher JA said:

26   “To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

41.   More recently, in Sergienko v AXL Financial Pty Ltd, [6] Ward CJ in Eq cited with approval the following observations made by Garling J as the trial judge in Garzo v Liverpool/Campbelltown Christian School: [7]

27   “As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the “risk of harm” in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a court in a position to determine the defendant’s knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant’s response, or lack of response, to that risk…

28   A proper pleading will also need to plead whether it is part of the plaintiff’s case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable (s 5B(1)(a)), or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided. A defendant would then be in a position to fully plead to such allegation.

29   …

30 As a real and practical matter, where a court is considering any of the essential steps in s 5B(1), it must do so against the identified risk of harm. It is a matter of common experience in common law claims, that in any given set of factual circumstances, there are a number of risks of harm which can be identified. Unless the risk of harm being relied upon is clearly identified then it will not be possible to identify what steps ought reasonably to have been taken by a defendant to address the risk. Nor will it be possible for a court to determine what the application of reasonable care required.” [8]

42.   These authorities establish that a plaintiff alleging a breach of duty of care by a builder, and this must include a breach of the Statutory Duty of Care, must identify the specific risks that the builder was required to manage, and the precautions that should have been taken to manage those risks.

43.   It is not sufficient simply to assert a defect and allege that the builder was required to take whatever precautions were needed to ensure that the defect not be present.

44.   It may be, in this case, that the requisite degree of specificity can be achieved by causing the List Statement to refer to the Scott Schedule and revising the Scott Schedule to add further columns identifying, in relation to each defect, the relevant risk and, more importantly, exactly what the Owners Corporation contends Loulach should have done in relation to that risk.

25. In the draft amended statement of claim, the requirements of the Civil Liability Act 2002 in ss 5A, 5B and 5C are set out. However, the draft pleading fails to apply those provisions, or the provisions of the BDPA to the case in hand in a manner consistent with the decision in Loulach. The draft pleading does not identify any defect which has allegedly been caused by the breach of a duty of care on the part of Mr Brennan or the Builder. The causal link between the breach of a duty by Mr Brennan or the Builder, and the causing of a defect which, in turn, has caused economic loss is not articulated. The asserted risk against which precautions should have been taken is not specified and neither are the allegedly required precautions. The relationships between the asserted breaches of duty, the nature of the defect and the alleged resultant economic loss is not articulated.

26. The Uniform Civil Procedure Rules 2005 (‘UCPR’) provide, in rule 15.1(1):

15.1   Pleadings must give all necessary particulars

(1)  Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

27. In Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at [18], Mason CJ and Gaudron J said:

18. The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liquidation) [1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ. at p 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

28. The draft amended statement of claim fails to plead a case under the DBPA against either the Builder or Mr Brennan which would enable them to identify the case that the pleading requires each of them to meet.

Conclusion on the application to file the amended Statement of Claim

29. The application to file the amended statement of claim will be refused, for the reasons set out above.

30. I have considered whether to allow some of the amendments in the draft amended statement of claim to be made, but I do not consider that it is appropriate to take that course because the draft amended statement of claim, as it would be after the removal of the paragraph seeking the setting aside of the judgment in 2025/00018851, the paragraphs relating to the SOPA process and the paragraphs relating to the DBPA allegations, would not be a coherent pleading.

Freezing order

31. No allegations against Mr Brennan or Mrs Brennan are made in the Statement of Claim. The application to file the amended statement of claim will be refused. In those circumstances, there is no basis for the making of a freezing order against Mr Brennan or Mrs Brennan in this matter.

32. As I have said, above, at [15], the draft amended statement of claim does not name Mrs Brennan as a party or include any allegations against Mrs Brennan, so, even if leave had been given to the plaintiff to file it, there would have been no basis for the making of a freezing order against her.

33. The UCPR provide, in rule 25.11:

25.11   Freezing order

(1)  The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.

(2)  A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

34. In Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 at [4], Simpson J, dealing with a Notice of Motion in which a freezing order was sought, said:

4.   There are two preconditions, each of which must be satisfied before the freezing order may be made. They are:

1.   that the applicants have a “good arguable case” (in this case on appeal); and

2.   that there is a danger that, if an order is not made, a judgment or prospective judgment will be wholly or partly unsatisfied for any one or more of the reasons stated in r 25.14(4).

35. The UCPR provide, in rule 25.14(4):

(4)  The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur—

(a)  the judgment debtor, prospective judgment debtor or another person absconds,

(b)  the assets of the judgment debtor, prospective judgment debtor or another person are—

(i)  removed from Australia or from a place inside or outside Australia, or

(ii)  disposed of, dealt with or diminished in value.

36. As I have said, the plaintiff in this matter presently has not pleaded a case against either Mr or Mrs Brennan. Even if he had, and even if the case pleaded was a “good arguable case”, the application for a freezing order would fail because there is no evidence before me that there is a danger that, if an order is not made, a prospective judgment will be wholly or partially unsatisfied for the reasons set out in rule 25.14(4) of the UCPR or for any other reason. On the contrary, Mr Brennan gave sworn evidence at the hearing of the application that he intended to purchase a home for himself and his family, within New South Wales, with part of the proceeds of the sale of his existing family home.

36. An undertaking as to damages is invariably given by an applicant for a freezing order. In circumstances where Mr Kemourtzis has a judgment against him, dated 16 January 2025, in the sum of $345,285.10, in favour of Brennan Constructions (NSW) Pty Ltd, which he has failed to pay, there would, at the very least, be some hesitation in accepting any undertaking as to damages from him. I note that Mr Kemourtzis has offered a Bank Guarantee in the sum of $375,000, but I also note that the judgment and the costs orders against him in case number 2025/00018851 exceed that amount.

37. The application for a freezing order under rule 25.11 will be refused.

38. It is unnecessary to deal with the plaintiff’s application to rely upon documents obtained in case number 2025/00018851.

The defendant's Notice of Motion dated 16 July 2025

40. In its Notice of Motion dated 16 July 2025, the defendant seeks the following order:

1. An order pursuant to s 67 of the Civil Procedure Act 2005 (NSW), that the Proceedings numbered 2025/00175335 be stayed pending:

a.   payment by Mr Nicholas Kemourtzis the amount of the Judgment, plus interest, entered on 16 January 2025 by the District Court of New South Wales in proceedings numbered 2025/00018851; and

b.   payment of the sum of $305,249.50, or such other amount as the Court determines, as security for the Defendant’s costs.

41. The Civil Procedure Act 2005 provides, in s 67:

67   Stay of proceedings

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

42. The UCPR provide, in rule 42.21:

42.21   Security for costs

(1)  If, in any proceedings, it appears to the court on the application of a defendant—

(a)  that a plaintiff is ordinarily resident outside Australia, or

(b)  that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or

(c)  that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or

(d)  that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or

(e)  that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or

(f)  that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings,

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given.

(1A)  In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant—

(a)  the prospects of success or merits of the proceedings,

(b)  the genuineness of the proceedings,

(c)  the impecuniosity of the plaintiff,

(d)  whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,

(e)  whether the plaintiff is effectively in the position of a defendant,

(f)  whether an order for security for costs would stifle the proceedings,

(g)  whether the proceedings involves a matter of public importance,

(h)  whether there has been an admission or payment in court,

(i)  whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,

(j)  the costs of the proceedings,

(k)  whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,

(l)  the timing of the application for security for costs,

(m)  whether an order for costs made against the plaintiff would be enforceable within Australia,

(n)  the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.

(1B)  If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.

(2)  Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.

(3)  If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.

(4)  This rule does not affect the provisions of any Act under which the court may require security for costs to be given.

43. In Duynstee v Dickens [2011] NSWSC 408 at [32]-[36], Price J said:

32   It is well established that a stay in proceedings may be granted unless and until security for costs is given: Phillips Electronics v Matthews ; Byrnes v John Fairfax Publications Pty Ltd [2006] NSWSC 251.

33 Specific provision is made for an order for security of costs in UCPR

r 42.21. The defendants do not contend that the present circumstances fall within any of the five categories identified in that rule. The court's power to stay proceedings on terms that security be provided is not limited by non-conformity with UCPR r 42.21. As Hodgson JA observed in Phillips Electronics at [47]:

"However, in my opinion, apart from any effect that Pt 40, r 1 of the District Court Rules might have, s 156 of the District Court Act is wide enough to give the District Court power to make an order staying proceedings unless and until security for costs is given, where the judge considers this reasonably necessary in order to do justice between the parties."

34 Section 156 District Court Act 1973 is essentially in the same terms as s 67 Civil Procedure Act and the District Court Rules 1973 Pt 40 r 1 (repealed) is in the same terms as UCPR r 42.21.

35   Hodgson JA observed at [53]:

"I think it would be reasonable to take the rule as indicating the usual circumstances in which security for costs would be ordered, and also reasonable not to exercise the power to stay proceedings under s 156, until security is given, unless a strong case is made out that this course is necessary in the interests of justice."

36   Mason P agreed with Hodgson JA's reasons but noted at [13]:

"None of this suggests that a judge of the District Court has a free-wheeling discretion to ignore the gravitational force of Pt 40, r 1. The cases in which the power to order a stay is conditional upon the grant of security in categories falling outside the five addressed in that rule remain exceptional (as Hodgson JA points out)."

44. In McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63, Griffiths AJA, with whom Payne JA and Adamson JA agreed said, at [68] – [73], dealing with the question of whether a stay should be granted in circumstances which bear some similarities with the present matter:

68.   For the following reasons, I would decline to stay the owner’s damages proceedings.

69.   First, in the circumstances of this case, such a stay would be inconsistent with the rights preserved by s 32 of the SOP Act,as explained above.

70.   Secondly, the builder’s failure to take prompt steps to enforce the judgment debt weighs heavily against a stay being granted. The garnishee orders having reaped so little, it was open to the builder promptly to take other potentially more meaningful steps to enforce the judgment debt, including bringing proceedings in the Equity Division seeking the appointment of a trustee for sale of the owner’s home. Moreover, the builder delayed almost six months before applying in the District Court for a writ for the levy of property, an application which apparently has progressed no further since it was filed on 29 January 2024. The evidence indicates that there is sufficient equity in the owner’s home to cover the amount of the judgment debt plus interest.

71.   Thirdly, I view the financial hardship of the respective parties (depending on whether or not a stay is granted) to be a neutral factor. This is because the evidence indicates that there will be some degree of hardship for whoever is the unsuccessful party, which will depend on whether or not a stay is granted. It is unnecessary to determine which of the parties would suffer the greater hardship because, independently of that matter, the other considerations weigh so heavily against the grant of a stay.

72.   Fourthly, without descending into a detailed assessment of the strength of the owner’s case as pleaded in the amended statement of claim and as supported by the expert report, there is no basis to find that the case is hopeless or lacking in reasonable prospects. The builder did not contend that the case was lacking in merit and, to date, it has not filed a defence.

73.   It is true that under cl 17.6 of the construction contract the owner has no right of set off other than in relation to the final progress claim. But that is neither here nor there in circumstances where the owner is seeking damages in an amount which far exceeds the judgment debt.

45. As I have said, the defendant seeks a stay pending the payment of both the judgment sum in case number 2025/00018851 and security for costs.

46. The application for security for costs does not fall within the circumstances contemplated by rule 42.21 of the UCPR. I note, in particular, rule 42.21(1B), which provides that an order for security for costs cannot be made against a natural person merely on account of his impecuniosity. In this matter, impecuniosity has not been established. In fact, an indication has been given that Mr Kemourtzis has assets worth $1.3 million.

47. I decline to stay the proceedings and I decline to order Mr Kemourtzis to pay security for costs.

Orders:

48. The following orders will issue:

1. Prayer 2 and prayer 6 of the plaintiff’s Notice of Motion filed on 2 July 2025 are refused.

2. Prayer 1 of the defendant’s Notice of Motion filed on 16 July 2025 is refused.

Noted that prayer 3 and prayer 5 of the Notice of Motion filed on 2 July 2025 have been withdrawn.

49. I will hear the parties as to costs.

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Decision last updated: 04 August 2025