Salem Ltd v Top End Homes Ltd CA169/05

The case Salem Ltd v Top End Homes Limited CA169/05 involved an appeal by Salem Limited against a summary judgment given by Venning J in favour of Top End Homes Limited. The sum of $297,617.59 was awarded to Top End Homes Limited. Salem appealed against this decision and sought a stay of execution of the judgment pending the appeal. The Court of Appeal dismissed the application for stay of execution and reserved costs. The court found that the appeal was not seriously arguable as the grounds of appeal were weak. The first ground of appeal was that there was no contract between Salem and Top End. However, the court found that there was a written contract between the parties. The second ground of appeal was that the payment claim to which Salem failed to respond was not a payment claim under the Construction Contracts Act. The court found that this ground of appeal had virtually no chance of success on the facts. The court also found that granting a stay would be unjust given the purpose of the Construction Contracts Act, which is to facilitate regular and timely payments between the parties to a construction contract. The court further observed that the application for stay was filed in the Court of Appeal rather than the High Court, which is the preferred practice. The court expressed a preliminary view that Salem’s chances of success on its appeal were slim and advised that none of the present panel would sit on it if Salem continued with the appeal. The court reserved costs and hoped that the parties would be able to resolve costs between themselves. If they could not, memorandums may be filed.