Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) - [2018] NSWCA 52

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52
Hearing dates: On the papers
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Payne JA
Decision:
(1) The motion filed by Probuild Constructions (Aust) Pty Ltd dated 14 February 2018 is dismissed with costs, such costs to include the costs of preparation of the submissions filed by Shade Systems on 20 March 2018.
(2) Pursuant to s 14 of the Civil Procedure Act dispense with the requirements of Uniform Civil Procedure Rules 2005 (NSW) r 36.16 and make the amendments to paragraph [25] of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 identified in paragraph [25] of these reasons.
Catchwords: CIVIL PROCEDURE – Unsuccessful High Court appeal - further stay of costs orders made by the Court of Appeal in 2016 pending the outcome of separate proceedings – whether matter should be remitted to the Equity Division
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Finn v Carelli [2007] NSWSC 261
Frigo v Culhaci [1998] NSWCA 88
Hancock v Arnold (No 2) [2009] NSWCA 19
HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
Schofield v Church Army [1986] 1 WLR 1328 (EWCA)
Texts Cited: Derham, The Law of Set-Off Oxford University Press (2010)
Category: Consequential orders (other than Costs)
Parties: Shade Systems Pty Ltd (Appellant/First respondent on the motion)
Probuild Constructions (Aust) Pty Ltd (Respondent/Applicant on the motion)
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

PAYNE JA: By notice of motion dated 14 February 2018, the applicant Probuild Constructions (Aust) Pty Ltd (Probuild), sought an order staying the enforcement of orders 2 and 3 made by this Court on 23 December 2016 in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379. The orders made by the Court were:

“1. Allow the…

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 52
Decision Date: 21 March 2018

CaseChat Overview and Summary

In *Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4)*, the New South Wales Court of Appeal considered a motion filed by Probuild Constructions (Aust) Pty Ltd seeking a further stay of costs orders made in 2016, pending the outcome of separate proceedings. Shade Systems Pty Ltd opposed this motion.

The primary legal issue before the Court of Appeal was whether Probuild was entitled to a further stay of the outstanding costs orders. A secondary issue arose concerning whether the matter should be remitted to the Equity Division.

Justice Payne dismissed Probuild's motion, finding no basis for a further stay of the costs orders. The Court reasoned that the existing circumstances did not warrant such an extraordinary measure, particularly given the passage of time since the original orders. The Court also exercised its power under s 14 of the *Civil Procedure Act 2005* (NSW) to dispense with the requirements of Uniform Civil Procedure Rules 2005 (NSW) r 36.16 to make specific amendments to a paragraph in a previous judgment of the Court.

The Court ordered that Probuild's motion be dismissed with costs, including the costs of Shade Systems' submissions filed on 20 March 2018. The Court also made the identified amendments to paragraph [25] of the earlier judgment.

Orders

Orders of the court

(1) The motion filed by Probuild Constructions (Aust) Pty Ltd dated 14 February 2018 is dismissed with costs, such costs to include the costs of preparation of the submissions filed by Shade Systems on 20 March 2018.

(2) Pursuant to s 14 of the Civil Procedure Act dispense with the requirements of Uniform Civil Procedure Rules 2005 (NSW) r 36.16 and make the amendments to paragraph [25] of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 identified in paragraph [25] of these reasons.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52
Hearing dates:	On the papers
Date of orders:	21 March 2018
Decision date:	21 March 2018
Before:	Payne JA
Decision:	(1) The motion filed by Probuild Constructions (Aust) Pty Ltd dated 14 February 2018 is dismissed with costs, such costs to include the costs of preparation of the submissions filed by Shade Systems on 20 March 2018. (2) Pursuant to s 14 of the Civil Procedure Act dispense with the requirements of Uniform Civil Procedure Rules 2005 (NSW) r 36.16 and make the amendments to paragraph [25] of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 identified in paragraph [25] of these reasons.
Catchwords:	CIVIL PROCEDURE – Unsuccessful High Court appeal - further stay of costs orders made by the Court of Appeal in 2016 pending the outcome of separate proceedings – whether matter should be remitted to the Equity Division
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Finn v Carelli [2007] NSWSC 261 Frigo v Culhaci [1998] NSWCA 88 Hancock v Arnold (No 2) [2009] NSWCA 19 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 Schofield v Church Army [1986] 1 WLR 1328 (EWCA)
Texts Cited:	Derham, The Law of Set-Off Oxford University Press (2010)
Category:	Consequential orders (other than Costs)
Parties:	Shade Systems Pty Ltd (Appellant/First respondent on the motion) Probuild Constructions (Aust) Pty Ltd (Respondent/Applicant on the motion) 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