Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd

Case [2018] NSWCA 33

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33
Hearing dates: 26 February 2018
Date of orders: 28 February 2018
Decision date: 28 February 2018
Before: Payne JA
Decision:

(1)   The sum of $314,504.72 paid into Court on 6 January 2017, pursuant to the orders of Basten JA dated 23 December 2016, including any interest accrued thereon, be paid out to Shade Systems Pty Ltd.

 

(2)   Probuild Constructions (Aust) Pty Ltd must pay the costs of the 15 February 2018 motion filed by Shade Systems Pty Ltd.

 

(3)   The 15 February 2018 motion filed by Probuild Constructions (Aust) Pty Ltd is dismissed with costs.

 

(4)   In relation to the whether the costs of either motion dated 15 February should be ordered to be paid on a lump sum basis, direct that:

 

(a)   Shade Systems Pty Ltd and the Third to Sixteenth Respondents to file any further evidence or submissions (limited to five pages) by 4pm on 2 March 2018;

 

(b)   Probuild Constructions (Aust) Pty Ltd to file any further evidence or submissions (limited to five pages) by 4pm on 9 March 2018;

 

(c)   Shade Systems Pty Ltd and the Third to Sixteenth Respondents to file submissions in reply (limited to 2 pages) by 4pm on 12 March 2018; and

 

(d)   the question of costs be determined on the papers.

 

(5)   In relation to the motion dated 14 February 2018 filed by Probuild Constructions (Aust) Pty Ltd, direct that:

 

(a)   Probuild Constructions (Aust) Pty Ltd file any evidence together with submissions on the motion (limited to five pages) by
4pm on 2 March 2018;

 

(b)   Shade Systems Pty Ltd file any evidence together with submissions on the motion (limited to five pages) by 4pm on 9 March 2018;

 

(c)   Probuild Constructions (Aust) Pty Ltd file submissions limited to two pages by 4pm on 12 March 2018; and

 (d)   the motion be determined on the papers unless either party succeeds in persuading the Court in the five page submission that a further oral hearing is warranted.
Catchwords: PROCEDURE – release of funds paid into Court – Building and Construction Industry Security of Payment Act 1999 (NSW) – unsuccessful appeal to High Court of Australia – stay of recovery of progress payment on terms that progress payment be paid into Court – whether proceedings should be remitted to Equity Division or progress payment released to successful High Court respondent
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Grosvenor Constructions (NSW) Pty Ltd (in Administration) v Musico & Ors [2004] NSWSC 344
Hakea Holdings Pty Ltd v Denham Constructions Pty Ltd [2016] NSWSC 1120
Probuild Constructions (Aus) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
R J Neller Building Pty Ltd v Ainsworth [2008] QCA 397
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AGLC
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33
Case
[2018] NSWCA 33
Decision Date

CaseChat Overview and Summary

Shade Systems Pty Ltd and Probuild Constructions (Aust) Pty Ltd were parties to proceedings concerning the release of funds paid into court. These funds had been paid into court as a condition of a stay on the recovery of a progress payment awarded to Shade Systems under the *Building and Construction Industry Security of Payment Act 1999* (NSW). Following an unsuccessful appeal by Probuild to the High Court of Australia, the central dispute before the Court of Appeal of New South Wales was whether the proceedings should be remitted to the Equity Division or if the progress payment, held in court, should be released to Shade Systems.

The court was required to determine the appropriate course of action regarding the funds paid into court, specifically whether to release them to the successful respondent, Shade Systems, or to remit the matter for further consideration in the Equity Division. This involved assessing the implications of the High Court's decision and the terms under which the funds were initially paid into court.

The Court of Appeal ordered that the sum of $314,504.72, paid into court on 6 January 2017, along with any accrued interest, be paid out to Shade Systems Pty Ltd. Probuild Constructions (Aust) Pty Ltd was ordered to pay the costs of a motion filed by Shade Systems on 15 February 2018, while Probuild's own motion filed on the same date was dismissed with costs. The court also made directions regarding the determination of costs on a lump sum basis and the process for determining another motion filed by Probuild on 14 February 2018, primarily on the papers.

Orders

Orders of the court

(1) The sum of $314,504.72 paid into Court on 6 January 2017, pursuant to the orders of Basten JA dated 23 December 2016, including any interest accrued thereon, be paid out to Shade Systems Pty Ltd.

(2) Probuild Constructions (Aust) Pty Ltd must pay the costs of the 15 February 2018 motion filed by Shade Systems Pty Ltd.

(3) The 15 February 2018 motion filed by Probuild Constructions (Aust) Pty Ltd is dismissed with costs.

(4) In relation to the whether the costs of either motion dated 15 February should be ordered to be paid on a lump sum basis, direct that:

(a) Shade Systems Pty Ltd and the Third to Sixteenth Respondents to file any further evidence or submissions (limited to five pages) by 4pm on 2 March 2018;

(b) Probuild Constructions (Aust) Pty Ltd to file any further evidence or submissions (limited to five pages) by 4pm on 9 March 2018;

(c) Shade Systems Pty Ltd and the Third to Sixteenth Respondents to file submissions in reply (limited to 2 pages) by 4pm on 12 March 2018; and

(d) the question of costs be determined on the papers.

(5) In relation to the motion dated 14 February 2018 filed by Probuild Constructions (Aust) Pty Ltd, direct that:

(a) Probuild Constructions (Aust) Pty Ltd file any evidence together with submissions on the motion (limited to five pages) by

4pm on 2 March 2018;

(b) Shade Systems Pty Ltd file any evidence together with submissions on the motion (limited to five pages) by 4pm on 9 March 2018;

(c) Probuild Constructions (Aust) Pty Ltd file submissions limited to two pages by 4pm on 12 March 2018; and

(d) the motion be determined on the papers unless either party succeeds in persuading the Court in the five page submission that a further oral hearing is warranted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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