Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) (No 2) [2024] NSWCA 22

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) (No 2) [2024] NSWCA 22 Hearing dates: On the papers Date of orders: 12 February 2024 Decision date: 12 February 2024 Before: Meagher JA; Mitchelmore JA; Adamson JA Decision: (1) Set aside orders 1, 2 and 4 of the orders of the District Court made on 18 August 2023 and the orders of the District Court made on 3 October 2023. (2) In lieu thereof, order judgment for the defendant. (3) The respondent repay the appellant the amount of $591,308.52 (Amount) held by the respondent upon the terms of the trust specified in the Deed of Company Arrangement dated 17 November 2022. (4) The respondent pay the appellant interest on the Amount from 23 October 2023 to 2 February 2024 in the sum of $16,808.01. (5) The costs of the proceedings at first instance be remitted to the District Court. Catchwords: APPEALS – costs – consequential orders – no question of principle Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(2)(a)(i) Uniform Civil Procedure Rules 2005 (NSW), r 42.14 Cases Cited: Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) [2023] NSWCA 306 Category: Consequential orders Parties: Total Construction Pty Ltd (Appellant) Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) (Respondent) Representation: Counsel: D S Weinberger (Appellant) A Greinke (Respondent)