Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118 Hearing dates: 16 June 2020 Date of orders: 16 June 2020 Decision date: 19 June 2020 Before: Bell P;
Macfarlan JA;
Leeming JA.Decision: Leave to appeal refused, with costs.
Catchwords: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payments Act 1999 (NSW) - builder served payment claim - developers failed to serve payment schedule - builder obtained judgment pursuant to Act - developers' appeal from judgment dismissed - proceedings based on construction contract pending in Technology and Construction List - late filing of cross-claim by developers - no explanation for late filing of cross-claim - developers seek further stay of judgment pending determination of main proceedings - developers claimed that they would be wound up if no stay were ordered and the cross-claim would not be adjudicated - primary judge dismissed application for a stay - whether any error of principle - whether principles in a “Grosvenor stay” applicable - Grosvenor Constructions (NSW) Pty Ltd v Musico [2004] NSWSC 344 considered - whether developers had demonstrated basis for stay of execution - leave to appeal refused Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 32
Civil Procedure Act 2005 (NSW), s 56Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2018] NSWSC 1435
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Decon Australia Pty Ltd v TFM Epping Land Pty Ltd (No 2) [2020] NSWSC 312
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2005) 62 NSWLR 385; [2005] NSWCA 49
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712; [2018] NSWCA 276
Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344
House v The King (1936) 55 CLR 499; [1936] HCA 40
In the matter of Pages Sales Pty Ltd [2016] NSWSC 616
In the matter of Tesrol Holdings Pty Ltd [2013] NSWSC 1534
Kalifair Pty Ltd v Digi-Tech (Australia) Pty Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Moutere v Deputy Commissioner of Taxation [2000] NSWSC 379; (2000) 34 ACSR 533
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33
Style Timber Floor Pty Ltd v Krivosudsky (2019) 100 NSWLR 133; [2019] NSWCA 171
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93
The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Vanella Pty Ltd atf Capitalist Family Trust v TFM Epping Land Pty Ltd [2020] NSWSC 659
Vanella…
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Details
- Case
- [2020] NSWCA 118
- Decision Date
CaseChat Overview and Summary
TFM Epping Land Pty Ltd (developers) appealed from a decision of the primary judge who dismissed their application for a stay of a judgment obtained by Decon Australia Pty Ltd (builder) under the *Building and Construction Industry Security of Payments Act 1999* (NSW). The builder had served a payment claim, and the developers failed to serve a payment schedule, leading to the builder obtaining judgment. The developers sought a stay of this judgment pending the determination of separate proceedings based on the construction contract, in which they had late-filed a cross-claim without explanation.
The central legal issue before the Court of Appeal was whether the primary judge erred in principle by refusing to grant a stay of the judgment. Specifically, the court considered whether the principles applicable to a "Grosvenor stay," as established in *Grosvenor Constructions (NSW) Pty Ltd v Musico*, were engaged and whether the developers had demonstrated a sufficient basis for a stay of execution. The developers argued that without a stay, they would be wound up, and their cross-claim would not be adjudicated.
The Court of Appeal found no error of principle in the primary judge's decision. The court applied the principles relating to stays of execution, noting that the developers had not established a compelling reason to depart from the usual course of enforcing a judgment obtained under the Security of Payments Act. The failure to provide an adequate explanation for the late filing of the cross-claim in the main proceedings was a significant factor. Consequently, the court refused leave to appeal.
The central legal issue before the Court of Appeal was whether the primary judge erred in principle by refusing to grant a stay of the judgment. Specifically, the court considered whether the principles applicable to a "Grosvenor stay," as established in *Grosvenor Constructions (NSW) Pty Ltd v Musico*, were engaged and whether the developers had demonstrated a sufficient basis for a stay of execution. The developers argued that without a stay, they would be wound up, and their cross-claim would not be adjudicated.
The Court of Appeal found no error of principle in the primary judge's decision. The court applied the principles relating to stays of execution, noting that the developers had not established a compelling reason to depart from the usual course of enforcing a judgment obtained under the Security of Payments Act. The failure to provide an adequate explanation for the late filing of the cross-claim in the main proceedings was a significant factor. Consequently, the court refused leave to appeal.
Orders
Orders of the court
Leave to appeal refused, with costs.
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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