PAUL KENNEDY MCCULLOUGH TRADING AS THE GREEN SIDE UP v NEW START AUSTRALIA PTY LIMITED [2023] NSWDC 82

District Court New South Wales

Medium Neutral Citation: PAUL KENNEDY MCCULLOUGH TRADING AS THE GREEN SIDE UP v NEW START AUSTRALIA PTY LIMITED [2023] NSWDC 82 Hearing dates: 31 January 2023 Date of orders: 31 January 2023 Decision date: 31 January 2023 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) The stay orders made on 15 December 2022 by Wilson DCJ are discharged. (2) The defendant is to pay the plaintiff's costs of the application on 31 January 2023 as agreed or assessed. (3) Order 1 is stayed for a period of 14 days to permit any application to the Court of Appeal, if advised. (4) Listed for directions before the List Judge on 21 February 2023 at 9:30am. Catchwords: BUILDING AND CONSTRUCTION – stay of judgment entered in the District Court following an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether stay orders should be discharged – no clear evidence as to the plaintiff's insolvency or potential insolvency – discretionary factors Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2018] NSWSC 1435 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 Shade Systems Pty Ltd v Probuild Constructions (Australia) Pty Ltd [2018] NSWCA 33 Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171; (2019) 100 NSWLR 133 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118 Veolia Water Solutions & Technologies (Australia) Pty Ltd v Kruger Engineering Australia Pty Ltd (No 3) [2007] NSWSC 459 Category: Procedural rulings Parties: Paul Kennedy McCullough trading as The Green Side Up (Plaintiff) New Start Australia Pty Limited (Defendant) Representation: Counsel: J Simpkins (Plaintiff) H Sonmez (Defendant)