Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3)

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.