TFM Epping Land Pty Ltd v Decon Australia Pty Ltd

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.