Landmark Building Services Qld Pty Ltd v D & M Carakitsos (No 2)

[2022] VCC 75

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

Building Cases List

Case No. CI-21-02042

LANDMARK BUILDING SERVICES QLD PTY LTD (ACN 606 374 770)	Plaintiff
v
DEMETRIOS CHARALAMBE CARAKITSOS and MOABE FRANCO PEREIRA CARAKITSOS	Defendants

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JUDGE:	His Honour Judge Woodward
WHERE HELD:	Melbourne
DATE OF HEARING:	None, on the papers
DATE OF RULING:	7 February 2022
CASE MAY BE CITED AS:	Landmark Building Services Qld Pty Ltd v D & M Carakitsos (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 75

RULING
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HIS HONOUR:

1I delivered reasons for judgment in this matter on 31 January 2022, finding for the plaintiff. Terms used in this ruling have the meanings in those reasons. I invited the parties to endeavour to agree orders to give effect to the reasons or, if they were unable to do so, provide brief written submissions on the orders they seek. The parties were unable to agree on orders and provided those submissions on 4 February 2022.

2There is no dispute between the parties in relation to the judgment amount, interest or costs. The only issue between them concerns whether the defendants should have the benefit of a 14 day stay of the judgment.

3In their written submissions, the defendants state that the stay is not sought in substitution for any application under r64.39 of the Supreme Court (General Civil Procedure) Rules 2015 to stay execution of judgment pending an appeal. Rather, the stay is sought to allow time for considered advice to be given on the merits of any appeal. The defendants say the time is required, in part, because the proceeding concerns the proper construction of s31 of the Act, “that has hitherto not been the subject of a published judgment”.

4The defendants concede that their request for a short stay is an indulgence of the court. However, they submit, any prejudice incurred by a 14 day stay is minimal and can be cured with the continuing accrual of interest. The plaintiff opposes any stay. It correctly anticipates that the stay is essentially sought in aid of appeal rights. It says that it is incumbent on the defendants to identify an arguable ground of appeal and “special circumstances” which justify stay.

5In view of the concessions by the defendants that they have no real grounds for a stay and are seeking an indulgence, the application for a stay must be refused. Both parties accept that a party who obtains a judgement is entitled to have it enforced without delay (State Bank of Victoria v Parry [1989] WAR 240 at 244, cited in Sami & Anor v Roads Corporation [2009] VSCA 44 at [25]). In my view, this is particularly so in the case of a proceeding seeking the enforcement of rights under the Act.

6The objects of the Act are well-known. In a nutshell, the Act seeks to ensure that parties in the position of the plaintiff can promptly secure payment of progress claims, free from excessive legal formality under what is described as a “pay now and argue later regime”:

“This regime promotes the object of the Act, being to facilitate timely payments between the parties to a construction contract and to provide for the rapid resolution of disputes arising in respect of progress claims under construction contracts.” Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor (2009) 26 VR 112 at [44].

7Under the Act, the provisions of Division 4 of Part 3 are an integral part of that regime. After completing an adjudication process under that Act, the plaintiff secured a judgment against Belo for the amount of its claim on 12 October 2020. It has had the benefit of a debt certificate enforceable against the defendants since 9 February 2021, a few days shy of 12 months ago. In my view, having regard to the lengthy delay already suffered by the plaintiff in enforcing its entitlements under the Act, it should not be held out from enforcing those entitlements for a moment longer than is absolutely necessary.

8I will make orders today in the form sought by the plaintiff.

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Certificate

I certify that these 3 pages are a true copy of the ruling of His Honour Judge Woodward delivered on 7 February 2022.

Dated: 7 February 2022

Lyn Nguyen

Associate to His Honour Judge Woodward