McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63 Hearing dates: 12 March 2024 Date of orders: 21 March 2024 Decision date: 21 March 2024 Before: Payne JA at [1]; Adamson JA at [2]; Griffiths AJA at [3] Decision: (1) The applicant have leave to file the proposed amended notice of appeal. (2) The applicant have leave to appeal. (3) The appeal be allowed. (4) The orders made by Olsson SC DCJ on 21 July 2023 be set aside. (5) The notice of motion filed in the District Court on 17 April 2023 be dismissed, with costs. (6) The respondents pay the appellant's costs of the appeal. Catchwords: CIVIL PROCEDURE — Stay of proceedings — whether the home owner's proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and effect of s 32 of the SOP Act — whether the home owner's proceedings are properly characterised as a "cross-claim" for the purposes of Pt 3 of the SOP Act — where the primary judge failed to consider the strength of the home owner's case — where the builder has delayed in enforcing the judgment debt BUILDING AND CONSTRUCTION — Contract — Damages — need to reconcile the policy of the SOP Act that a builder should receive progress payments promptly with the preservation of common law rights in s 32 of that Act Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 3, 8, 9, 13, 14, 15, 17-25, 32 Commercial Arbitration Act 2010 (NSW) s 47 Corporations Act 2001 (Cth) s 459H Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW) s 23 Cases Cited: A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1229 Grant Constructions Pty Ltd v Claron Constructions Pty Limited [2006] NSWSC 369 Grosvenor Constructions (NSW) Pty Limited (in administration) v Musico [2004] NSWSC 344 Hakea Holdings Pty Ltd v Denham Constructions Pty Ltd; BaptistCare NSW & ACT v Denham Constructions Pty Ltd [2016] NSWSC 1120 RJ Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390 Samadi Developments Pty Ltd v SX Projects Pty Ltd [2015] NSWSC 1576 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118 Category: Principal judgment Parties: Kylie McDonald (Applicant) MAK Constructions and Building Services Pty Ltd ACN 144 852 979 (First Respondent) Matthew Joseph Burns (Second Respondent) Representation: Counsel: M Klooster/D Lander (Applicant) S Ahmed (Respondents)