Northbuild Construction P/L v. Discovery Beach Project P/L

SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Construction P/L v Discovery Beach Project P/L [2009] QCA 235

PARTIES:

NORTHBUILD CONSTRUCTION PTY LTD
ACN 011 063 764
(appellant/applicant)
v
DISCOVERY BEACH PROJECT PTY LTD
ACN 100 500 981
(respondent/respondent)

FILE NO/S:

Appeal No 7853 of 2007
SC No 11269 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

18 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2009

JUDGE:

Holmes JA

ORDERS:

1.   Application for stay dismissed;

2.   Applicant pay respondent’s costs of application.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where applicant ordered to pay respondent’s costs following unsuccessful appeal – where applicant seeks stay of enforcement of costs order – where applicant has an order for costs and an interim award against respondent from an arbitration and anticipates an award in its favour – where applicant contends respondent impecunious and will dissipate any costs paid to it so that applicant will be unable to recover any amount awarded to it – where respondent asserts it is not insolvent and has paid more under an interim award than applicant will receive – whether applicant has discharged evidential onus – whether application for stay should be granted

COUNSEL:

C A Wilkins for the applicant
D O’Brien for the respondent

SOLICITORS:

Crouch & Lyndon for the applicant
Clayton Utz for the respondent

HOLMES JA:  The applicant, Northbuild, was the builder on a north coast hotel project, while Discovery Beach Project Pty Ltd was the developer.

Northbuild was unsuccessful in an appeal concerning a dispute resolution process between the two. It was ordered to pay costs which were assessed in an amount of $29,234.77. The certificate of the costs assessor was duly filed and, as Rule 740 of the Uniform Civil Procedure Rules required, the Registrar ordered payment of that amount, his order taking effect as a judgment of the Court.

On 6 August, Discovery Beach obtained the issue of an enforcement warrant.  Northbuild applies under Rule 800 or, alternatively, in the inherent jurisdiction of this Court for a stay of the enforcement of the Registrar's order.

The basis of that application is essentially Northbuild's contention that it will receive a substantial award against Discovery Beach from an arbitration, but that Discovery Beach's financial position is such that it is likely to dissipate any costs paid to it immediately, leaving Northbuild with no prospect of recovery of any amount awarded to it by the arbitrator.

The arbitrator's award indicates that Northbuild was successful in having findings made by him in its favour.  Northbuild contends that it can expect an award in excess of $1.3 million together with costs as a result.  It already has in its favour an order for costs in relation to an interim award, the amount of which is yet to be determined, but in respect of which it contends it is likely to receive something in the order of $30,000, as I understand it;…