Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) - [2016] NSWCA 382

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) [2016] NSWCA 382
Hearing dates: 23 December 2016
Decision date: 23 December 2016
Before: Basten JA
Decision:
(1)   Upon the First Respondent undertaking to pay the sum of $314,504.72 into Court by 5pm on 6 January 2017, order that the Appellant is restrained from:

(a) requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act);
(b)   filing an adjudication certificate as a judgment for a debt in any court pursuant to s 25 of the Act;
(c)   serving a notice on the Plaintiff pursuant to s 24(1 )(b) of the Act,
in connection with the determination made by the Second Respondent dated 15 February 2016 until after the Relevant Date or until further order of this Court or of the High Court.

In this order, "Relevant Date" means:
(a)   5pm on 6 January 2017; or
(b)   if an application for special leave to appeal to the High Court from the orders made by the Court of Appeal on 23 December 2016 is made on or before 6 January 2017:
(i)   the date on which that application is refused; or
(ii)   if that application is granted, the date on which the appeal is determined.

(2)   Liberty to apply on two days' notice.
(3)   Each party is to bear its own costs of the stay application.
Catchwords: PROCEDURE – civil – stay of appeal judgment – proposed application for special leave to appeal – issue of general importance – protection of subject matter of dispute – balance of convenience – offer to pay sum into court
Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379
Category: Consequential orders (other than Costs)
Parties: Shade Systems Pty Ltd (Appellant)
Probuild Constructions (Aust) Pty Ltd (First Respondent)
Doron Rivlin (Second Respondent)
Representation:
Counsel:
Mr D Hume (Appellant)
Mr S Robertson (First Respondent)
Solicitors:
Moray & Agnew (Appellant)
Maddocks (First Respondent)

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

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2016] NSWSC 770

Date of Decision:

15 June 2016

Before:

Emmett AJA

File Number(s):

2016/64368

Judgment

This morning the Court handed down judgment in the matter of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2). [1] The effect of the judgment was to allow the appeal and set aside the orders made in the Equity Division on 15 June 2016. That meant that the judgment setting aside the determination of the adjudicator was itself set aside and the determination of the adjudicator stands. The issue which was resolved in this Court was whether or not there was a right of review in the supervisory…

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 382
Decision Date: 23 December 2016

CaseChat Overview and Summary

In *Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3)*, the applicant, Shade Systems Pty Ltd, sought to restrain Probuild Constructions (Aust) Pty Ltd from taking steps to enforce an adjudication certificate issued under the *Building and Construction Industry Security of Payment Act 1999* (NSW). This application was made in anticipation of a proposed application for special leave to appeal to the High Court from a decision of the Court of Appeal.

The central legal issue before Basten JA was whether to grant a stay of proceedings to protect the subject matter of the dispute pending the determination of a potential special leave application to the High Court. This involved considering the balance of convenience between the parties and the significance of the issues likely to be raised in the proposed appeal.

Basten JA reasoned that a stay was warranted to preserve the status quo and prevent the applicant from suffering irreparable harm if the appeal were successful. The court applied the principles governing stays of execution and the protection of subject matter, particularly where an issue of general importance was likely to be considered by the High Court. The court ordered that the applicant be restrained from requesting or filing an adjudication certificate as a judgment, or serving a notice under the Act, provided the respondent paid a specified sum into court. This undertaking and the subsequent orders were designed to ensure that the subject matter of the dispute, namely the monetary sum, was protected until the final determination of any High Court proceedings.

Orders

Orders of the court

(1) Upon the First Respondent undertaking to pay the sum of $314,504.72 into Court by 5pm on 6 January 2017, order that the Appellant is restrained from:

(a) requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act);

(b) filing an adjudication certificate as a judgment for a debt in any court pursuant to s 25 of the Act;

in connection with the determination made by the Second Respondent dated 15 February 2016 until after the Relevant Date or until further order of this Court or of the High Court.

In this order, "Relevant Date" means:

(a) 5pm on 6 January 2017; or

(b) if an application for special leave to appeal to the High Court from the orders made by the Court of Appeal on 23 December 2016 is made on or before 6 January 2017:

(i) the date on which that application is refused; or

(ii) if that application is granted, the date on which the appeal is determined.

(2) Liberty to apply on two days' notice.

(3) Each party is to bear its own costs of the stay application.

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 3) [2016] NSWCA 382
Hearing dates:	23 December 2016
Decision date:	23 December 2016
Before:	Basten JA
Decision:	(1) Upon the First Respondent undertaking to pay the sum of $314,504.72 into Court by 5pm on 6 January 2017, order that the Appellant is restrained from: (a) requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act); (b) filing an adjudication certificate as a judgment for a debt in any court pursuant to s 25 of the Act; (c) serving a notice on the Plaintiff pursuant to s 24(1 )(b) of the Act, in connection with the determination made by the Second Respondent dated 15 February 2016 until after the Relevant Date or until further order of this Court or of the High Court. In this order, "Relevant Date" means: (a) 5pm on 6 January 2017; or (b) if an application for special leave to appeal to the High Court from the orders made by the Court of Appeal on 23 December 2016 is made on or before 6 January 2017: (i) the date on which that application is refused; or (ii) if that application is granted, the date on which the appeal is determined. (2) Liberty to apply on two days' notice. (3) Each party is to bear its own costs of the stay application.
Catchwords:	PROCEDURE – civil – stay of appeal judgment – proposed application for special leave to appeal – issue of general importance – protection of subject matter of dispute – balance of convenience – offer to pay sum into court
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379
Category:	Consequential orders (other than Costs)
Parties:	Shade Systems Pty Ltd (Appellant) Probuild Constructions (Aust) Pty Ltd (First Respondent) Doron Rivlin (Second Respondent)
Representation:	Counsel: Mr D Hume (Appellant) Mr S Robertson (First Respondent) Solicitors: Moray & Agnew (Appellant) Maddocks (First Respondent)
File Number(s):	2016/205479
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2016] NSWSC 770 Date of Decision: 15 June 2016 Before: Emmett AJA File Number(s): 2016/64368