MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWCA 226

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWCA 226 Hearing dates: 21 September 2020 Decision date: 21 September 2020 Before: Basten JA Decision: (1) Upon the applicants giving to the Court the usual undertaking as to the damages, until the hearing and determination of the application for leave to appeal and, if leave be granted, any appeal – the first respondent is restrained from enforcing the Adjudication Determination No 2020058EA dated 5 June 2020, including by: (a) obtaining any adjudication certificate under s 24(1)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act); (b) filing any adjudication certificate as a judgment debt in any court of competent jurisdiction under s 25(1) of the Act; and (c) seeking to obtain payment or otherwise claim moneys in respect of the determination. (2) Grant the parties liberty to apply on 48 hours' notice in the event that there is any change in circumstances. (3) Direct that the costs of the applicants' motion filed 8 September 2020 be the respondent's costs in the proceedings in this Court. (4) Fix the application for leave to appeal and, if leave be granted, any appeal for concurrent hearing on Thursday 29 October 2020. Catchwords: PRACTICE AND PROCEDURE – application for interlocutory restraining order pending hearing of appeal – judicial review proceedings – determination of separate question – review of determination by adjudicator under Building and Construction Industry Security of Payments Act 1999 (NSW) – appeal fixed for hearing in 5 weeks – concurrent unresolved claim under Australian Consumer Law (Cth), s 18 Legislation Cited: Australian Consumer Law (Cth), s 18 Building and Construction Industry Security of Payments Act 1999 (NSW), ss 17, 24, 25 Commercial Arbitration Act 2010 (NSW), s 8 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 715 Downer Constructions (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49 Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 150 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R J Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390; [2008] QCA 397 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Category: Procedural and other rulings Parties: MTR Corporation (Sydney) NRT Pty Ltd (First Applicant) UGL Rail Services Pty Ltd (Second Applicant) Thales Australia Ltd (First Respondent) Helen Durham (Second Respondent) Representation: Counsel: Mr M Christie SC (Applicants) Mr F P Hicks (First Respondent)