McLaughlin's Family Restaurant v Cordukes Ltd

McLaughlin's Family Restaurant (the claimant) sought a stay of execution of a judgment obtained by Cordukes Ltd (the opponent) in the District Court. The judgment arose from a payment claim made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). No payment schedule was provided by the claimant in response to the payment claim. The claimant sought to appeal the judgment on the ground that the payment claim was served out of time, arguing that the remedial work to which the claim related did not constitute "construction work" as defined by the Act.

The primary legal issue before the court was whether to grant a stay of execution of the District Court judgment pending the determination of the appeal. This involved considering the merits of the appeal, the potential hardship to the claimant if the judgment sum were paid, and the policy objectives of the *Building and Construction Industry Security of Payment Act 1999*.

Giles JA noted that the argument on appeal was "difficult," suggesting a low probability of success. Furthermore, there was no evidence presented to demonstrate that payment of the judgment sum would cause hardship to the claimant or that the sum would be irrecoverable should the appeal succeed. The court also considered that the claimant intended to bring separate proceedings for breach of contract against the opponent. In light of the difficult nature of the appeal and the absence of evidence of hardship, Giles JA concluded that the policy of the Act, which favours the prompt payment of construction debts, weighed against granting a stay in these circumstances.

Consequently, the court dismissed the claimant's application for a stay of execution and ordered the claimant to pay the opponent's costs of the hearing.