Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd

Lewence Construction Pty Ltd (the appellant) sought a stay of a court order pending the determination of its appeal against Southern Han Breakfast Point Pty Ltd (the respondent). The dispute concerned monies paid into court pursuant to a judgment arising from a claim under the *Building and Construction Industry Security of Payments Act 1999* (NSW).

The primary legal issue before Leeming JA was whether a stay of the order requiring payment of monies into court should be granted pending appeal. Specifically, the court considered whether exceptional circumstances were required to be shown when the underlying claim arose under the Security of Payments Act, and whether the appellant had demonstrated sufficient grounds for a stay in the absence of evidence of prejudice to the respondent and limited evidence of the respondent's financial circumstances.

Leeming JA determined that exceptional circumstances were not a prerequisite for a stay in this context. The court applied the general principles for granting a stay pending appeal, which involve considering the merits of the appeal and the balance of convenience. Given that the appeal was capable of being heard within a short timeframe and the appellant had provided an undertaking to prosecute the appeal with expedition, a stay was ordered.

The court ordered that the order requiring payment of monies into court be stayed until seven days after the determination of the appeal. Directions were also given regarding the filing and service of written submissions and the preparation of appeal books, with the appeal to be listed for hearing shortly thereafter. The costs of the notice of motion were reserved to be costs in the appeal.