Superb Build Pty Ltd v Petrosyan - [2023] NSWDC 2

District Court

New South Wales

Medium Neutral Citation: Superb Build Pty Ltd v Petrosyan [2023] NSWDC 2
Hearing dates: 3 February 2023
Date of orders: 16 February 2023
Decision date: 16 February 2023
Jurisdiction: Civil
Before: Andronos SC DCJ
Decision:
(1) On the continuation of the usual undertaking as to damages by the defendants, and on the undertaking by the defendants to prosecute District Court proceedings 2022/360925 with due despatch, the enforcement of the judgment in these proceedings, any garnishee orders made against the defendants and the writ of levy of property against the defendants be stayed until 5.00pm on the first day of the hearing of District Court proceedings 2022/360925 or otherwise ordered.
(2) The plaintiff/respondent pay the costs of the defendants/applicants of the Notice of Motion filed on 30 November 2022.

Catchwords:
CIVIL PROCEDURE— Stay of enforcement pending determination of related proceedings
BUILDING AND CONSTRUCTION – stay of judgment giving effect to adjudication under Building and Construction Industry Security of Payment Act 1999 (NSW)

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), s 3, s 17, s 25
Civil Procedure Act 2005 (NSW), s 67, s 135
District Court Act 1973 (NSW), s 156
Home Building Act 1989 (NSW), s 7, s 10, s 92

Cases Cited:
Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2022] NSWSC 1487
Hakea Holdings Pty Limited v Denham Constructions Pty Ltd;BaptistCare NSW & ACT v Denham Constructions Pty Ltd [2016] NSWSC 1120
J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33
Team Dreegan Pty Limited v Symich Building Pty Limited [2021] NSWDC 825
TFM Epping Land Pty Limited v Decon Australia Pty Limited [2020] NSWCA 118

Category: Procedural rulings
Parties: Superb Build Pty Ltd (plaintiff/respondent to notice of motion)
Eric Petrosyan and Yeranuchi Petrosyan (defendants/applicants on notice of motion)
Representation:
Counsel:
Mr G McDonald (plaintiff/respondent to notice of motion)
Mr F Corsaro SC with Mr M Auld (defendants/applicants on notice of motion)
Solicitors:
Rostron Carlyle Rojas Lawyers (plaintiff/respondent to notice of motion)
William Cotsis & Associates (defendants/applicants on notice of motion)

File Number(s): 2022/00266838
Publication restriction: None

Judgment

This is an application to extend a stay on a judgment entered in these proceedings in favour of the plaintiff (“Superb”) on 7 September 2022 (the “Judgment”). The Judgment gives effect to an adjudication certificate issued in favour of Superb under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the “SOP Act”) on 17 August 2022. The adjudication certificate is in the sum of $179,262.27, and arose out of claims made by Superb in respect of work performed at the defendants’/applicants’ residence at Bayview, New South Wales (the “Property”). Relying on the Judgment, the plaintiff obtained a garnishee order and writ of levy on the property of the defendants/applicants (“the Petrosyans”).
The defendants/applicants are also the plaintiffs in proceedings 2022/360925 (the “Related Proceedings”) in which…

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: [2023] NSWDC 2
Decision Date: 16 February 2023

CaseChat Overview and Summary

Superb Build Pty Ltd, the plaintiff, sought enforcement of an adjudicator's determination against Petrosyan, the defendant. The dispute arose from a construction contract where Superb Build claimed payment for work done. Petrosyan opposed the enforcement, arguing there were disputes with the adjudicator's determination that should be resolved in court. The matter was heard in the Supreme Court of New South Wales.

The central legal issue was whether the enforcement of the adjudicator's determination should be stayed pending the outcome of related proceedings in the District Court. This involved interpreting the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) and considering the principles of finality and fairness in construction disputes. The court had to balance the rights of both parties under the Act and in light of existing litigation.

The court decided that it was appropriate to stay the enforcement of the adjudicator's determination. The judge found that the District Court proceedings involved significant issues that could affect the validity of the adjudicator's decision. The court emphasised the importance of finality in construction disputes and the potential unfairness to the defendant if the enforcement proceeded without resolving the related issues. The stay was conditional on the defendants continuing their usual undertaking as to damages and proceeding with the District Court matter expeditiously.

The court ordered that the enforcement of the judgment, any garnishee orders, and the writ of levy of property against Petrosyan be stayed until the specified date or the conclusion of the District Court proceedings. Additionally, Superb Build was ordered to pay the defendants' costs of the Notice of Motion filed on 30 November 2022.

Orders

Orders of the court

(1) On the continuation of the usual undertaking as to damages by the defendants, and on the undertaking by the defendants to prosecute District Court proceedings 2022/360925 with due despatch, the enforcement of the judgment in these proceedings, any garnishee orders made against the defendants and the writ of levy of property against the defendants be stayed until 5.00pm on the first day of the hearing of District Court proceedings 2022/360925 or otherwise ordered.

(2) The plaintiff/respondent pay the costs of the defendants/applicants of the Notice of Motion filed on 30 November 2022.

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:	Superb Build Pty Ltd v Petrosyan [2023] NSWDC 2
Hearing dates:	3 February 2023
Date of orders:	16 February 2023
Decision date:	16 February 2023
Jurisdiction:	Civil
Before:	Andronos SC DCJ
Decision:	(1) On the continuation of the usual undertaking as to damages by the defendants, and on the undertaking by the defendants to prosecute District Court proceedings 2022/360925 with due despatch, the enforcement of the judgment in these proceedings, any garnishee orders made against the defendants and the writ of levy of property against the defendants be stayed until 5.00pm on the first day of the hearing of District Court proceedings 2022/360925 or otherwise ordered. (2) The plaintiff/respondent pay the costs of the defendants/applicants of the Notice of Motion filed on 30 November 2022.
Catchwords:	CIVIL PROCEDURE— Stay of enforcement pending determination of related proceedings BUILDING AND CONSTRUCTION – stay of judgment giving effect to adjudication under Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), s 3, s 17, s 25 Civil Procedure Act 2005 (NSW), s 67, s 135 District Court Act 1973 (NSW), s 156 Home Building Act 1989 (NSW), s 7, s 10, s 92
Cases Cited:	Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2022] NSWSC 1487 Hakea Holdings Pty Limited v Denham Constructions Pty Ltd;BaptistCare NSW & ACT v Denham Constructions Pty Ltd [2016] NSWSC 1120 J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 Team Dreegan Pty Limited v Symich Building Pty Limited [2021] NSWDC 825 TFM Epping Land Pty Limited v Decon Australia Pty Limited [2020] NSWCA 118
Category:	Procedural rulings
Parties:	Superb Build Pty Ltd (plaintiff/respondent to notice of motion) Eric Petrosyan and Yeranuchi Petrosyan (defendants/applicants on notice of motion)
Representation:	Counsel: Mr G McDonald (plaintiff/respondent to notice of motion) Mr F Corsaro SC with Mr M Auld (defendants/applicants on notice of motion) Solicitors: Rostron Carlyle Rojas Lawyers (plaintiff/respondent to notice of motion) William Cotsis & Associates (defendants/applicants on notice of motion)
File Number(s):	2022/00266838
Publication restriction:	None