Render Design (Aus) Pty Ltd v Sky Stand Plastering Pty Ltd

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Render Design (Aus) Pty Ltd v Sky Stand Plastering Pty Ltd [2014] NSWDC 317
Hearing dates:	9 May 2014
Date of orders:	09 May 2014
Decision date:	09 May 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)Defendant’s notice of motion filed 28 April 2014 is dismissed. (2)Defendant pay the costs of the notice of motion.
Catchwords:	CONTRACT – building work – owner claims for damages for defective work – builder has registered judgments resulting from adjudication certificates under security of payments legislation – builder seeks stay of proceedings until satisfaction of judgments – entitlement of party to bring proceedings for breach of contract irrespective of adjudication proceedings – not proceedings to set aside adjudication – no entitlement to stay
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999, s 25, s 32 Civil Procedure Act 2005, s 67
Cases Cited:	Bruce Maples v Siteberg [2012] NSWSC 435 Grant Constructions Pty Limited v Claron Constructions Pty Limited [2006] NSWSC 369 Jem Developments Pty Ltd and Anor v Hansen Yuncken Pty Ltd [2006] NSWSC 1087 Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152 Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Procedural and other rulings
Parties:	Render Design (Australia) Pty Ltd (plaintiff) Sky Stand Plastering Pty Ltd (defendant)
Representation:	Counsel: Mr M Auld (plaintiff) Mr J Lee (defendant) Solicitors: Knight Lawyers (plaintiff) Ren Zhou Lawyers(defendant)
File Number(s):	2013/375479
Publication restriction:	None

Judgment

1. The defendant seeks a stay of the present proceedings under s 67 of the Civil Procedure Act 2005 until the plaintiff has paid into court the amounts, the subject of two judgments in favour of the defendant, resulting from the filing of adjudication certificates.

2. The plaintiff, Render Design (Australia) Pty Ltd (“Render Design”), commenced proceedings against the defendant, Sky Stand Plastering Pty Ltd (“Sky Stand”), for damages for breach of a building contract. The issues to be canvassed in these proceedings are said to be the same as those canvassed in adjudication determinations made in favour of Sky Stand. Sky Stand has filed adjudication certificates and obtained judgments pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (“the Act”). Although Sky Stand has taken some enforcement procedures, the bulk of the monies owing under the judgments remain outstanding. Sky Stand seeks an order staying the proceedings until an amount equal to the sum of the judgments is paid into court.

3. Sky Stand relies on s 25(4) of the Act and the decision of Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169. Section 25(4) provides:

“(4) If the respondent commences proceedings to have the judgment set aside, the respondent:

(a) is not, in those proceedings, entitled:

(i) to bring any cross-claim against the claimant, or

(ii) to raise any defence in relation to matters arising under the construction contract, or

(iii) to challenge the adjudicator’s determination,…