Nu-Stone Building Pty Ltd v McInerney - [2023] NSWSC 67

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 67
Hearing dates: 08 February 2023
Date of orders: 09 February 2023
Decision date: 09 February 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1)    Orders 3 and 4 made by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales on 14 November 2022 are stayed until the determination of the plaintiff’s application for leave to appeal made by the summons filed on 2 September 2022 and of any appeal, if leave is granted.
(2)   The costs of this motion are to be costs in the cause.
(3)   The hearing of the plaintiff’s application for leave to appeal and, if leave is granted, the appeal are listed for hearing on 21 and 22 June 2023.

Catchwords:
PRACTICE AND PROCEDURE – Application for a stay of proceedings pending determination of application for leave to appeal and any appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales – Whether there is an arguable ground of appeal on a question of law – Whether arguable that leave to appeal would be granted – Where there is a risk of substantial prejudice to the plaintiff if that the orders are not stayed – Where there is no or limited risk of substantial prejudice to the defendants if the orders are stayed – Balance of convenience and the interests of justice favour the granting of a stay

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 78, 83
Home Building Act 1989 (NSW), s 42A
Uniform Civil Procedure Rules 2005 (NSW), r 50.7

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121
Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285
Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737; [2002] NSWCA 383
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231
NSW Bar Association v Stevens [2003] NSWCA 95
NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449
Vaughan v Dawson [2008] NSWCA 169
Welsch v Carnival PLC t/as Carnival Australia [2014] NSWCA 430
Yolarno Pty Ltd v Shandong Delisi Food Co Ltd [2022] NSWCA 30

Category: Procedural rulings
Parties:
Nu-Stone Building Pty Ltd (Plaintiff)
Garry John McInereny (First Defendant)
Gladys Bridget McInerney (Second Defendant)
Representation:
Counsel:
M Klooster (Plaintiff)
M Galvin (Defendants)
Solicitors:
Sachs Gerace Lawyers (Plaintiff)
Walker Hedges Forestville (Defendants)

File Number(s): 2022/00364333
Decision under appeal

Court or tribunal:

Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Appeal Panel

Citation:

[2022] NSWCATAP 285

Date of Decision:

14 November 2022

Before:

R C Titterton OAM, Senior Member
C Mulvey, Senior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 67
Decision Date: 09 February 2023

CaseChat Overview and Summary

The matter before the court involved Nu-Stone Building Pty Ltd, the plaintiff, and McInerney, the defendant. The dispute originated from an adjudication under the Building and Construction Industry Security of Payment Act 2002 (NSW) and subsequent proceedings before the Civil and Administrative Tribunal of New South Wales. The plaintiff sought a stay of proceedings pending the determination of an application for leave to appeal from the tribunal's decision. The legal issues before the court were whether there was an arguable ground of appeal on a question of law and whether it was arguable that leave to appeal would be granted. Additionally, the court had to consider whether there was a risk of substantial prejudice to the plaintiff if the orders were not stayed and whether the balance of convenience and the interests of justice favoured the granting of a stay.

The court first considered whether the plaintiff had identified an arguable ground of appeal on a question of law. It found that the plaintiff had demonstrated a plausible legal argument concerning the interpretation of the Security of Payment Act. The court then assessed whether it was arguable that leave to appeal would be granted. The court acknowledged the merits of the plaintiff's arguments and noted the importance of preserving the right to appeal. Furthermore, the court weighed the risk of substantial prejudice to both parties, concluding that the plaintiff faced significant prejudice if the orders were not stayed, while the defendants faced minimal risk. The balance of convenience and the interests of justice were held to favour the granting of a stay.

Given the findings, the court granted the plaintiff's application for a stay of proceedings. The court determined that the plaintiff had established an arguable ground of appeal and that it was arguable that leave to appeal would be granted. The court also found that the plaintiff would suffer substantial prejudice if the stay was not granted, while the defendants faced limited risk. The final orders included a stay of all proceedings in the current matter until the determination of the application for leave to appeal and any subsequent appeal, with directions for service and further hearing of the appeal application.

Orders