Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd - [2008] NSWDC 236

CITATION: Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd [2008] NSWDC 236

HEARING DATE(S): 7 October 2008

JUDGMENT DATE:
15 October 2008

JURISDICTION: District Court - Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. The Defendant’s motion seeking a stay of execution of the Judgment based on the Determination of the Adjudicator is dismissed.
2. Defendant to pay the Plaintiff’s costs of the motion and of the Cross-Claim.

CATCHWORDS: INTERLOCUTORY APPLICATION – Application for stay of execution on Judgment based on Determination by Adjudicator entered pursuant to Section 25 of the Building and Construction Industry Security of Payments Act, 1999 (NSW) – Cross-Claim for an unliquidated sum based on alleged misleading or deceptive representations within the meaning of the Trade Practices Act, 1974 (Cwth) –whether stay should be granted in the circumstances. - PROCEDURE – Question of whether Cross-Claim seeking unliquidated damages as a set-off to a Judgment entered pursuant to s.25 of Building and Construction Industry Security of Payments Act, 1999 (NSW) is procedurally appropriate was not determined as there was no motion before the Court seeking to dismiss the Cross-Claim.

LEGISLATION CITED: Building and Construction Industry Security of Payments Act, 1999 (NSW); s.25
Trade Practices Act, 1974 (Cwth); s.51A, s.52, s.53(aa), s.80, s.82 and s.87
Uniform Civil Procedure Act, 2005; s.21(1), s.56

CASES CITED: Bittania Pty Ltd v Parkline Constructions Pty Ltd [2008] NSWCA 238
Katherine Pty Ltd v the CCD Group Pty Ltd [2008] NSWSC 131
Taylor Projects Group Pty Limited v Brick Department Pty Limited & Ors [2005] NSWSC 571

PARTIES: Stone Will Pty Ltd (Plaintiff)
CMS Group (NSW) Pty Ltd (Defendant)

FILE NUMBER(S): 4521 of 2008

COUNSEL: Mr B DeBuse (Plaintiff)
Ms V Culkoff (Defendant)

SOLICITORS: HWL Ebsworths Lawyers (Plaintiff)
Doyles Construction Lawyers (Defendants)

JUDGMENT

Introduction

1. The substantive proceedings arise out of a building contract and related works that have been the subject of an Adjudication and Determination under the Building and Construction Industry Security of Payments Act, 1999 (NSW). Pursuant to that Determination the Plaintiff / Respondent has obtained a Judgment for the amount of the Determination together with interest.

2. On 1 October 2008 the Defendant /Applicant filed an Amended Notice of Motion seeking an order, inter alia, that execution on the Judgment entered in favour of the Plaintiff / Respondent in the proceedings be stayed.

3. The basis of the application concerned issues raised by a Cross-Claim in which the Defendant / Applicant seeks to rely on relief claimed under the provisions of the Trade Practices Act, 1974 (Cwth) involving alleged misleading or deceptive representations by the Plaintiff / Respondent. The other orders sought in the Amended Notice of Motion were not pursued, apart from the issue of costs.

Issues for determination

4. During the course of the opening the parties were requested to define the issues with clarity. Consequently, two issues were settled between the parties as arising for determination in this Notice of Motion. Having reviewed the affidavits and the arguments raised at the hearing I have…

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: [2008] NSWDC 236
Decision Date: 15 October 2008

CaseChat Overview and Summary

In the matter of Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd, the plaintiff, Stone Will Pty Ltd, sought a judgment against the defendant, CMS Group (NSW) Pty Ltd, based on an adjudicator's determination under Section 25 of the Building and Construction Industry Security of Payments Act, 1999 (NSW). CMS Group applied for a stay of execution of this judgment, arguing that there was a cross-claim pending which sought unliquidated damages for alleged misleading or deceptive conduct by Stone Will under the Trade Practices Act, 1974 (Cwth). The case was heard in a relevant Australian court.

The primary legal issue before the court was whether the stay of execution should be granted, considering the cross-claim for unliquidated damages. The court also needed to determine if the cross-claim was procedurally appropriate, although it was noted that this specific procedural question was not before the court as no motion to dismiss the cross-claim had been made. The focus, therefore, was on the appropriateness of granting a stay of execution under the given circumstances.

The court dismissed the defendant's motion for a stay of execution. The reasoning behind the dismissal was not explicitly detailed in the text provided. However, it can be inferred that the court considered the merits of the adjudicator's determination under the Security of Payments Act and possibly the procedural implications of allowing a stay in the context of a pending cross-claim. The court concluded that the defendant's application for a stay was not warranted, and thus, the stay was dismissed. Additionally, the defendant was ordered to pay the plaintiff's costs associated with the motion and the cross-claim.

Orders

Orders of the court

1. The Defendant's motion seeking a stay of execution of the Judgment based on the Determination of the Adjudicator is dismissed. 2. Defendant to pay the Plaintiff's costs of the motion and of the Cross-Claim.

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.

CITATION:	Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd [2008] NSWDC 236
HEARING DATE(S):	7 October 2008
JUDGMENT DATE:	15 October 2008
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The Defendant’s motion seeking a stay of execution of the Judgment based on the Determination of the Adjudicator is dismissed. 2. Defendant to pay the Plaintiff’s costs of the motion and of the Cross-Claim.
CATCHWORDS:	INTERLOCUTORY APPLICATION – Application for stay of execution on Judgment based on Determination by Adjudicator entered pursuant to Section 25 of the Building and Construction Industry Security of Payments Act, 1999 (NSW) – Cross-Claim for an unliquidated sum based on alleged misleading or deceptive representations within the meaning of the Trade Practices Act, 1974 (Cwth) –whether stay should be granted in the circumstances. - PROCEDURE – Question of whether Cross-Claim seeking unliquidated damages as a set-off to a Judgment entered pursuant to s.25 of Building and Construction Industry Security of Payments Act, 1999 (NSW) is procedurally appropriate was not determined as there was no motion before the Court seeking to dismiss the Cross-Claim.
LEGISLATION CITED:	Building and Construction Industry Security of Payments Act, 1999 (NSW); s.25 Trade Practices Act, 1974 (Cwth); s.51A, s.52, s.53(aa), s.80, s.82 and s.87 Uniform Civil Procedure Act, 2005; s.21(1), s.56
CASES CITED:	Bittania Pty Ltd v Parkline Constructions Pty Ltd [2008] NSWCA 238 Katherine Pty Ltd v the CCD Group Pty Ltd [2008] NSWSC 131 Taylor Projects Group Pty Limited v Brick Department Pty Limited & Ors [2005] NSWSC 571
PARTIES:	Stone Will Pty Ltd (Plaintiff) CMS Group (NSW) Pty Ltd (Defendant)
FILE NUMBER(S):	4521 of 2008
COUNSEL:	Mr B DeBuse (Plaintiff) Ms V Culkoff (Defendant)
SOLICITORS:	HWL Ebsworths Lawyers (Plaintiff) Doyles Construction Lawyers (Defendants)