Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61

District Court New South Wales

Medium Neutral Citation: Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61 Hearing dates: 5 March 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Civil Before: Scotting DCJ Decision: 1. The stay of enforcement of the judgment entered on 31 July 2020 is dissolved. 2. The amount of $248,059.50 retained in the District Court Trust Account and any interest accrued thereon since 7 August 2020 be paid to the Plaintiff, by payment to its solicitor's Trust Account. 3. The plaintiff's solicitor is to make payments from its Trust Account to the subcontractors set out in column 2 of the table appearing at [51] of the Affidavit of Kevin John Murphy affirmed 14 December 2020, being the amounts MBC concedes it is liable to pay to those entities. 4. The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed. 5. The costs of the Notice of Motion can be assessed forthwith. Catchwords: CIVIL PROCEDURE — Stay of enforcement of judgment Legislation Cited: Civil Procedure Act 2005 Building and Construction Industry Security of Payments Act 1999 Cases Cited: Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 Australian Securities & Investment Commission v Matthews (2009) ACSR 559 Cherry v Park-Steele [2017] NSWCA 295 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Harvey v Phillips (1956) 95 CLR 235 Kilpatrick v Kotis (2004) 62 NSWLR 567 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 McGrath v Suresteps; Suresteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Newey v Westpac Banking Corporation [2014] NSWCA 319 R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) FCR 389 S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 WIN Corporation Pty Ltd v Nine Network Pty Ltd [2016] NSWCA 297 Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thomson Reuters, Sydney, 2020 Category: Procedural rulings Parties: Mosman Building and Constructions Pty Ltd (Plaintiff) Banz Pty Ltd (Defendant) Representation: Counsel: J Hyde (Plaintiff) M Klooster (Defendant)