Team Dreegan Pty Ltd v Symich Building Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Team Dreegan Pty Ltd v Symich Building Pty Ltd [2021] NSWDC 825

Hearing dates:

14 October 2021

Date of orders:

25 October 2021

Decision date:

25 October 2021

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Notice of motion by Symich Building Pty Ltd filed 29 September 2021 dismissed.

(2)   Applicant on the motion to pay the respondent's costs.

(3)   Any application to vary order (2) be made by email to my associate within 14 days.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — Stay of enforcement pending determination of related proceedings

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999, Pt 3, s 3, s 13, s 25, s 32, s 34

Corporations Act 2001 (Cth), s 459G, s 459H, s 459J

Cases Cited:

Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685

Grosvenor Constructions (NSW) Pty Limited (in administration) v Musico & Ors [2004] NSWSC 344

In the matter of Douglas Aerospace Pty Ltd [2015] NSWSC 167

J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203

Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 103

RJ Neller Building Pty Ltd v Ainsworth [2008] QCA 397

Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169

Category:

Procedural rulings

Parties:

Team Dreegan Pty Ltd (plaintiff/respondent on notice of motion)
Symich Building Pty Ltd (defendant/applicant on notice of motion)

Representation:

Counsel:
Mr N Allan (plaintiff/respondent on notice of motion)
Mr D Ratnam (defendant/applicant on notice of motion)

Solicitors:
Ziman and Ziman Solicitors (plaintiff/respondent on notice of motion)
Yamine ESY Lawyers Pty Ltd (defendant/applicant on notice of motion)

File Number(s):

2021/00215317

Publication restriction:

None

Judgment

A. Introduction

1. Symich Building Pty Ltd seeks a stay of a judgment in favour of Team Dreegan Pty Ltd resulting from an adjudication under the Building and Construction Industry Security of Payment Act 1999.  

B. Issues

2. Symich asserts that a stay should be granted because it has a valuable cross-claim, and there is a likelihood of irreparable prejudice if a stay is not granted.  The issues appear to be:

1. What is the test for a stay of a judgment resulting from an adjudication under the Act.

2. What is the strength and magnitude of Symich's cross-claim.

3. Is there a likelihood of irreparable prejudice if a stay were not granted.

C. Background

3. Team Dreegan was contracted by Symich in relation to the construction of a service station at Mayfield.  Nine payment claims were made and dealt with, apparently without incident.  The tenth, in April 2021, produced from Symich a payment schedule which led to an adjudication.  The amount claimed was significantly reduced on the adjudication, principally because a large part of the claim by Symich for liquidated damages was allowed.  The adjudicated amount was not promptly paid by Symich and Team Dreegan then obtained judgment for the adjudicated amount, which was then largely and promptly paid by Symich. 

4. The eleventh…