Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd (No 2) [2023] NSWSC 248

Supreme Court New South Wales

Medium Neutral Citation: Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd (No 2) [2023] NSWSC 248 Hearing dates: On the papers Decision date: 21 March 2023 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: In Proceeding 2022/00288266 (1) The notice of motion filed on 9 November 2022 be dismissed; (2) The notice of motion filed on 21 November 2022 be dismissed; (3) Judgment for the plaintiff for $719,519.82 including $35,591.33 interest; (4) There be no order as to costs of the notice of motion filed on 9 November 2022; (5) The defendant otherwise pay the plaintiff's costs of the proceedings to be assessed on the ordinary basis; (6) On the condition that the defendant file a Notice of Appeal within 14 days of the making of these orders, order that orders (3) and (5) of these orders are stayed until further order of this Court or the Court of Appeal. In Proceeding 2022/0000353631 (1) To the extent necessary, the plaintiff is granted leave to begin and proceed with this proceeding, nunc pro tunc, pursuant to section 444E(3) of the Corporations Act 2001 (Cth); (2) The originating process is dismissed; (3) The plaintiff pay the defendants' costs of the proceedings on the ordinary basis; (4) On the condition that the plaintiff file a notice of appeal within 14 days of the making of these orders, order that order (3) of these orders is stayed until further order of this Court or the Court of Appeal. Catchwords: CIVIL PROCEDURE — Stay of proceedings — Pending appeal COSTS — Party/Party — Bases of quantification whether to grant ordinary or indemnity costs — whether exceptional circumstances exist to grant otherwise — where no genuine offer of compromise Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fairall v Hobbs (No 2) [2017] NSWCA 133; (2017) 347 ALR 151 Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Category: Consequential orders Parties: Kennedy Civil Contracting Pty Ltd (Administrators Appointed) (Plaintiff in 2022/288266 and First Defendant in 2022/353631) Richard Crookes Constructions Pty Limited (Defendant in 2022/288266 and Plaintiff in 2022/353631) Trent Andrew Devine and Bradd William Morelli as deed administrators of Kennedy Civil Contracting Pty Ltd (Subject to Deed of Company Arrangement) (Second Defendant in 2022/353631) Representation: Counsel: