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

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.