MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd

The applicants, MTR Corporation (Sydney) NRT Pty Ltd, sought an interlocutory restraining order against the respondent, Thales Australia Ltd, pending the hearing of an appeal. The dispute arose from judicial review proceedings concerning the determination of a separate question by an adjudicator under the *Building and Construction Industry Security of Payment Act 1999* (NSW). This determination was being challenged, and a concurrent unresolved claim under section 18 of the *Australian Consumer Law* (Cth) also existed. The application was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether to grant an interlocutory injunction to restrain the respondent from enforcing an adjudication determination made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). This was to be considered in light of an impending appeal, scheduled for hearing in approximately five weeks, and the existence of a separate, unresolved claim under the *Australian Consumer Law*.

Basten JA granted the interlocutory restraining order, requiring the applicants to provide the usual undertaking as to damages. The order restrained the respondent from enforcing the adjudication determination, specifically prohibiting the obtaining of an adjudication certificate, filing it as a judgment debt, or seeking payment in respect of the determination. The Court also fixed the application for leave to appeal and any subsequent appeal for a concurrent hearing on 29 October 2020.