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

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

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Case Copied 29 August 2016 14 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234
Hearing dates: 29 August 2016
Decision date: 29 August 2016
Before: Basten JA
Decision:
(1)   Grant leave to the appellant to amend its notice of motion filed on 17 August 2016.

(2)   Stay order (4) made in the Equity Division on 15 June 2016 (relating to the costs in the Division) pending the outcome of the appeal.

(3)   Adjourn the first respondent’s motion seeking security for its costs of the appeal to the Registrar’s list on Monday 12 September 2016.

(4)   To the extent that the issue of subpoenas is necessary, grant leave to the first respondent to issue subpoenas for production of documents to Michael Jolly, Jillian Jolly, Trent Jolly and MPJ Investments Pty Ltd, such subpoenas to be returnable before the Registrar on 8 September 2016.

(5)   Any subpoenas issued pursuant to order 4 may be served by providing a copy thereof to the appellant’s solicitor, Mr Kaluski, electronically.

(6)   Grant leave to the parties to approach the Registrar to obtain a date for hearing on or after the matter is returned to the Registrar’s list on 12 September 2016.
(7)   The costs of each motion are to be costs in the appeal.
Catchwords:
PRACTICE AND PROCEDURE – stay of costs order pending appeal – expedition – reasonable prospects of success – issue of general importance - possibility that enforcement of costs order would stultify appeal
PRACTICE AND PROCEDURE – security for costs – respondent to show order against corporation would not stultify appeal – whether those standing behind company have means to provide security – application for adjournment – respondent seeking subpoenas to test statements as to lack of means of shareholders and directors
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cth), s 1335
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 385
Kalifair v Digi-Tech Australia Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130
Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288
Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2016] HCATrans 173
Category: Procedural and other rulings
Parties: Shade Systems Pty Ltd (Appellant)
Probuild Constructions (Aust) Pty Ltd (First Respondent)
Representation:
Counsel:
Mr M Christie SC (Appellant)
Mr S Robertson (First Respondent)
Solicitors:
Moray & Agnew Lawyers (Appellant)
Maddocks (First Respondent)

File Number(s): 2016/205479
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

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: [2016] NSWCA 234
Decision Date: 29 August 2016

CaseChat Overview and Summary

In *Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd*, the appellant, Shade Systems Pty Ltd, sought a stay of a costs order made in the Equity Division pending the outcome of its appeal. The first respondent, Probuild Constructions (Aust) Pty Ltd, in turn, sought security for its costs of the appeal. The matter came before Basten JA in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether to grant a stay of the costs order, considering the expedition of the appeal, the reasonable prospects of success, the issue of general importance, and the possibility that enforcement of the costs order would stultify the appeal. Additionally, the court had to determine whether to grant security for the first respondent's costs of the appeal, and whether the respondent had shown that such an order would not stultify the appeal, including whether those standing behind the company had the means to provide security. The court also considered an application for an adjournment and the respondent's seeking of subpoenas to test statements regarding the lack of means of shareholders and directors.

Basten JA applied principles relating to stays of costs orders pending appeal, requiring a demonstration that enforcement would be oppressive or stultify the appeal, and considering the prospects of success and the importance of the issues raised. Regarding security for costs, the court considered the respondent's onus to show that an order would not prevent the appeal from proceeding, and the relevance of the financial capacity of those associated with the appellant. The court allowed the appellant to amend its notice of motion and granted a stay of the costs order made in the Equity Division pending the appeal's outcome. The first respondent's motion for security for costs was adjourned, with leave granted to issue subpoenas to specific individuals and a company to test assertions about financial means.

The court ordered that leave be granted to the appellant to amend its notice of motion. A stay of the costs order made in the Equity Division on 15 June 2016 was granted pending the outcome of the appeal. The first respondent's motion seeking security for its costs of the appeal was adjourned to the Registrar's list. Leave was granted to the first respondent to issue subpoenas for documents to Michael Jolly, Jillian Jolly, Trent Jolly, and MPJ Investments Pty Ltd, returnable before the Registrar. Service of these subpoenas could be effected electronically. The costs of each motion were to be costs in the appeal.

Orders

Orders of the court

(1) Grant leave to the appellant to amend its notice of motion filed on 17 August 2016.

(2) Stay order (4) made in the Equity Division on 15 June 2016 (relating to the costs in the Division) pending the outcome of the appeal.

(3) Adjourn the first respondent’s motion seeking security for its costs of the appeal to the Registrar’s list on Monday 12 September 2016.

(4) To the extent that the issue of subpoenas is necessary, grant leave to the first respondent to issue subpoenas for production of documents to Michael Jolly, Jillian Jolly, Trent Jolly and MPJ Investments Pty Ltd, such subpoenas to be returnable before the Registrar on 8 September 2016.

(5) Any subpoenas issued pursuant to order 4 may be served by providing a copy thereof to the appellant’s solicitor, Mr Kaluski, electronically.

(6) Grant leave to the parties to approach the Registrar to obtain a date for hearing on or after the matter is returned to the Registrar’s list on 12 September 2016.

(7) The costs of each motion are to be costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234
Hearing dates:	29 August 2016
Decision date:	29 August 2016
Before:	Basten JA
Decision:	(1) Grant leave to the appellant to amend its notice of motion filed on 17 August 2016. (2) Stay order (4) made in the Equity Division on 15 June 2016 (relating to the costs in the Division) pending the outcome of the appeal. (3) Adjourn the first respondent’s motion seeking security for its costs of the appeal to the Registrar’s list on Monday 12 September 2016. (4) To the extent that the issue of subpoenas is necessary, grant leave to the first respondent to issue subpoenas for production of documents to Michael Jolly, Jillian Jolly, Trent Jolly and MPJ Investments Pty Ltd, such subpoenas to be returnable before the Registrar on 8 September 2016. (5) Any subpoenas issued pursuant to order 4 may be served by providing a copy thereof to the appellant’s solicitor, Mr Kaluski, electronically. (6) Grant leave to the parties to approach the Registrar to obtain a date for hearing on or after the matter is returned to the Registrar’s list on 12 September 2016. (7) The costs of each motion are to be costs in the appeal.
Catchwords:	PRACTICE AND PROCEDURE – stay of costs order pending appeal – expedition – reasonable prospects of success – issue of general importance - possibility that enforcement of costs order would stultify appeal PRACTICE AND PROCEDURE – security for costs – respondent to show order against corporation would not stultify appeal – whether those standing behind company have means to provide security – application for adjournment – respondent seeking subpoenas to test statements as to lack of means of shareholders and directors
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth), s 1335 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 385 Kalifair v Digi-Tech Australia Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130 Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288 Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2016] HCATrans 173
Category:	Procedural and other rulings
Parties:	Shade Systems Pty Ltd (Appellant) Probuild Constructions (Aust) Pty Ltd (First Respondent)
Representation:	Counsel: Mr M Christie SC (Appellant) Mr S Robertson (First Respondent) Solicitors: Moray & Agnew Lawyers (Appellant) Maddocks (First Respondent)
File Number(s):	2016/205479
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: