V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd - [2022] VSCA 77

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0020

V601 DEVELOPMENTS PTY LTD (ACN 082 670 595)	Applicant
v
PROBUILD CONSTRUCTIONS (AUST) PTY LTD (ACN 095 250 945)	Respondent

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JUDGES:	SIFRIS and MACAULAY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2022
DATE OF JUDGMENT:	2 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 77

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PRACTICE AND PROCEDURE – Stay – Application for stay of execution of judgment pending application for leave to appeal – No material risk that appeal rendered nugatory in absence of stay – Refusal of stay would not result in discontinuance of application for leave to appeal – No special or exceptional circumstances – Respondent entitled to benefit of judgment – Application for stay dismissed – Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd (2004) 9 VR 382 applied.

PRACTICE AND PROCEDURE – Respondent company in administration – Leave to proceed required pursuant to s 440D(1)(b) of the Corporations Act 2001 (Cth) – Leave granted for limited purpose of proceeding with stay application – Application for leave to proceed otherwise adjourned – Corporations Act 2001 (Cth) s 440D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Magee QC with Mr P Baker and Ms J Dodd	Baker McKenzie
For the Respondent	Mr N D Hopkins QC with Ms V Bell	King & Wood Mallesons

SIFRIS JA
MACAULAY JA:

Introduction

V601 Developments Pty Ltd (‘V601’) commenced proceedings against Probuild Constructions (Aust) Pty Ltd (‘Probuild’) in the Trial Division seeking declaratory relief and liquidated damages in the sum of $4,712,519 under a building contract dated 23 May 2011 (the ‘Contract’). Probuild made a counterclaim for damages arising out of various breaches of the Contract and also sought other relief including declaratory relief.

The trial judge dismissed the claim made by V601 and gave judgment in favour of Probuild in the sum of $13,846,409.10 (inclusive of interest) and costs (‘Judgement Debt’).[1] V601 seeks leave to appeal the decision.[2] Pending the application for leave to appeal, V601 seeks a stay of the Orders (‘stay application’).[3]
[1]V601 v Probuild [2021] VSC 849 (‘Reasons’). Orders were made on 12 January 2022 (‘Orders’).
[2]The application for leave to appeal is dated 21 February 2022.
[3]The stay application is also dated 21 February 2022.

Subsequent to the judgment, Probuild was placed into administration.[4] Section 440D(1) of the Corporations Act 2001 (Cth) (‘Corporations Act’) provides that during the administration of a company, a proceeding against that company cannot proceed except with the administrator’s written consent or with the leave of the Court.
[4]Administrators were appointed on 23 February 2022.

In order to proceed with the stay application, V601 therefore requires and seeks the leave of the Court (‘leave to proceed application’). Further, and self-evidently, the stay application is only made in contemplation of an appeal.

Although contending that the requirements for a stay had not been made out, Probuild said that it would not oppose the stay application or the leave to proceed application provided…

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.

Continue reading V601 Developments Pty Ltd v Probuild Constructions (Aust) Pt...

Details

AGLC: V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2022] VSCA 77
Case: [2022] VSCA 77
Decision Date: 2 May 2022

CaseChat Overview and Summary

The matter before the court was an application by V601 Developments Pty Ltd for a stay of execution of a judgment entered against them in favour of Probuild Constructions (Aust) Pty Ltd. The dispute arose from a construction contract, and the judgment was for substantial damages due to alleged breaches of contract by V601. The application was brought before the court under the Federal Circuit and Family Court of Australia, with the primary focus on the procedural aspects of the application for a stay.

The legal issues before the court involved determining whether the application for a stay should be granted, particularly in light of the respondent company being in administration. The court had to consider whether there was a material risk that the appeal would be rendered nugatory without a stay, and whether refusal of the stay would result in the discontinuance of the appeal application. Additionally, the court assessed whether there were any special or exceptional circumstances that warranted a stay and if the respondent was entitled to the benefit of the judgment.

The court found that there was no material risk that the appeal would be rendered nugatory in the absence of a stay, and that refusal of the stay would not result in the discontinuance of the appeal application. The court held that there were no special or exceptional circumstances present that would warrant a stay, and the respondent was entitled to the benefit of the judgment. The application for a stay was dismissed based on the principles set out in Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd. The court also addressed the procedural aspect concerning the need for leave to proceed with the stay application under section 440D(1)(b) of the Corporations Act 2001 (Cth), given the respondent company was in administration. The court granted leave for the limited purpose of proceeding with the stay application but adjourned the application for leave to proceed otherwise.

The final orders of the court were that the application for a stay of execution of the judgment was dismissed, and leave was granted for the limited purpose of proceeding with the stay application. The application for leave to proceed was otherwise adjourned pending further determination.

Orders