Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) - [2018] NSWCA 34

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2018] NSWCA 34
Hearing dates: 28 February 2018
Date of orders: 28 February 2018
Decision date: 28 February 2018
Before: Payne JA
Decision:
Application for stay of order 1 made on 28 February 2018 is refused

Catchwords: CIVIL PROCEDURE – application for a stay of order releasing funds applicant ordered to pay to respondent by this Court as a condition of stay pending applicant’s appeal to the High Court of Australia – unsuccessful appeal to High Court of Australia by applicant – application refused
Legislation Cited: Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Reinhardt v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33
Texts Cited: None
Category: Consequential orders (other than Costs)
Parties: Shade Systems Pty Ltd
Probuild Constructions (Aust) Pty Ltd
Doron Rivlin (Second Respondent)
G A Atkins (Third Respondent)
G T Connellan (Fourth Respondent)
J Cooper (Fifth Respondent)
L Gardner (Sixth Respondent)
S C Harris (Seventh Respondent)
M J Huckerby (Eighth Respondent)
M J Lee (Ninth Respondent)
P McCarthy (Tenth Respondent)
R McKenna (Eleventh Respondent)
S G O’Sullivan (Twelfth Respondent)
M A Pitt (Thirteenth Respondent)
P W Utiger (Fourteenth Respondent)
S Wallace (Fifteenth Respondent)
C A Williams (Sixteenth Respondent)
Representation:
Counsel:
M Christie SC / D Hume (Shade Systems Pty Ltd)
S Robertson (Probuild Constructions (Aust) Pty Ltd)
Solicitors:
Moray & Agnew (Shade Systems Pty Ltd)
Maddocks (Probuild Constructions (Aust) Pty Ltd)
Moray & Agnew (Third to sixteenth respondents)

File Number(s): 2016/205479
Publication restriction: None

. .

Judgment - EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194] and published 14 March 2018]

PAYNE JA: Judgment was handed down in this matter this afternoon: ShadeSystems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33. Familiarity with that decision is assumed here. The same defined terms as are used in that judgment will be used here. The principal effect of the orders pronounced this afternoon is the release of funds held by the Court as security for a stay pending appeal to the High Court from the decision of this Court ordered by Basten JA in December 2016. The High Court appeal has now been concluded and I have ordered that the funds lodged be released to Shade Systems.
Probuild submitted that a stay should be granted to enable consideration of a foreshadowed review under s 46(4) of the Supreme Court Act1970 (NSW) of my decision. Probuild repeats the submission made in the primary proceedings that unless the orders sought are made, its rights will be irremediably affected. Shade Systems opposes the grant of any stay.
I refuse the application for a stay of order 1 just pronounced. My reasons are as follows:

s 46(4) permits a review of a single…

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: [2018] NSWCA 34
Decision Date: 28 February 2018

CaseChat Overview and Summary

Shade Systems Pty Ltd (the applicant) sought a stay of an order made by the Court on 28 February 2018, which required the applicant to pay funds to Probuild Constructions (Aust) Pty Ltd (the respondent). This application was made in the context of the applicant's unsuccessful appeal to the High Court of Australia.

The central legal issue before the Court was whether to grant a stay of the earlier order releasing funds to the respondent, pending the applicant's appeal to the High Court.

The Court refused the application for a stay. The reasoning was that the applicant's appeal to the High Court had already been heard and determined unsuccessfully. Consequently, the basis for seeking a stay of the Court's order, which was contingent on the pending appeal, no longer existed. The Court applied the principle that a stay is typically granted to preserve the status quo or prevent prejudice pending an appeal, and once the appeal has been dismissed, the need for such a stay is extinguished.

The application for a stay of the order made on 28 February 2018 was refused.

Orders

Orders of the court

Application for stay of order 1 made on 28 February 2018 is refused

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 (No 2) [2018] NSWCA 34
Hearing dates:	28 February 2018
Date of orders:	28 February 2018
Decision date:	28 February 2018
Before:	Payne JA
Decision:	Application for stay of order 1 made on 28 February 2018 is refused
Catchwords:	CIVIL PROCEDURE – application for a stay of order releasing funds applicant ordered to pay to respondent by this Court as a condition of stay pending applicant’s appeal to the High Court of Australia – unsuccessful appeal to High Court of Australia by applicant – application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Reinhardt v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33
Texts Cited:	None
Category:	Consequential orders (other than Costs)
Parties:	Shade Systems Pty Ltd Probuild Constructions (Aust) Pty Ltd Doron Rivlin (Second Respondent) G A Atkins (Third Respondent) G T Connellan (Fourth Respondent) J Cooper (Fifth Respondent) L Gardner (Sixth Respondent) S C Harris (Seventh Respondent) M J Huckerby (Eighth Respondent) M J Lee (Ninth Respondent) P McCarthy (Tenth Respondent) R McKenna (Eleventh Respondent) S G O’Sullivan (Twelfth Respondent) M A Pitt (Thirteenth Respondent) P W Utiger (Fourteenth Respondent) S Wallace (Fifteenth Respondent) C A Williams (Sixteenth Respondent)
Representation:	Counsel: M Christie SC / D Hume (Shade Systems Pty Ltd) S Robertson (Probuild Constructions (Aust) Pty Ltd) Solicitors: Moray & Agnew (Shade Systems Pty Ltd) Maddocks (Probuild Constructions (Aust) Pty Ltd) Moray & Agnew (Third to sixteenth respondents)
File Number(s):	2016/205479
Publication restriction:	None