Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd [2008] NSWDC 236

New South Wales District Court

CITATION: Stone Will Pty Ltd v CMS Group (NSW) Pty Ltd [2008] NSWDC 236

HEARING DATE(S): 7 October 2008

JUDGMENT DATE: 15 October 2008

JURISDICTION: District Court - Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. The Defendant's motion seeking a stay of execution of the Judgment based on the Determination of the Adjudicator is dismissed. 2. Defendant to pay the Plaintiff's costs of the motion and of the Cross-Claim.

CATCHWORDS: INTERLOCUTORY APPLICATION – Application for stay of execution on Judgment based on Determination by Adjudicator entered pursuant to Section 25 of the Building and Construction Industry Security of Payments Act, 1999 (NSW) – Cross-Claim for an unliquidated sum based on alleged misleading or deceptive representations within the meaning of the Trade Practices Act, 1974 (Cwth) –whether stay should be granted in the circumstances. - PROCEDURE – Question of whether Cross-Claim seeking unliquidated damages as a set-off to a Judgment entered pursuant to s.25 of Building and Construction Industry Security of Payments Act, 1999 (NSW) is procedurally appropriate was not determined as there was no motion before the Court seeking to dismiss the Cross-Claim.

Building and Construction Industry Security of Payments Act, 1999 (NSW); s.25 LEGISLATION CITED: Trade Practices Act, 1974 (Cwth); s.51A, s.52, s.53(aa), s.80, s.82 and s.87 Uniform Civil Procedure Act, 2005; s.21(1), s.56

Bittania Pty Ltd v Parkline Constructions Pty Ltd [2008] NSWCA 238 CASES CITED: Katherine Pty Ltd v the CCD Group Pty Ltd [2008] NSWSC 131 Taylor Projects Group Pty Limited v Brick Department Pty Limited & Ors [2005] NSWSC 571