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:
Solicitors:
M Christie SC / D Hume (Shade Systems Pty Ltd)
S Robertson (Probuild Constructions (Aust) Pty Ltd)
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
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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…
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- Case
- [2018] NSWCA 52
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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