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 directorsLegislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cth), s 1335
Supreme Court Act 1970 (NSW), s 69Cases 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 173Category: Procedural and other rulings Parties: Shade Systems Pty Ltd (Appellant)
Probuild Constructions (Aust) Pty Ltd (First Respondent)Representation: Counsel:
Solicitors:
Mr M Christie SC (Appellant)
Mr S Robertson (First Respondent)
Moray & Agnew Lawyers (Appellant)
Maddocks (First Respondent)
File Number(s): 2016/205479 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity Division
- Citation:
Keep reading for free
Create a free CaseChat account to read Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Lt... and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] NSWCA 234
- Decision Date
CaseChat Overview and Summary
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.