Facade Innovations Pty. Ltd. v. Timwin Constructions Pty. Ltd. & Ors. [2005] NSWCA 197

New South Wales Court of Appeal

CITATION: Facade Innovations Pty. Ltd. v. Timwin Constructions Pty. Ltd. & Ors. [2005] NSWCA 197

HEARING DATE(S): 8 June 2005

JUDGMENT DATE: 8 June 2005

JUDGMENT OF: Hodgson JA at 1

DECISION: 1. Ordered that order three made by McDougall J on 1 June 2005 in proceedings 55035/05 for payment out to Timwin of money paid into court be stayed until the judgment entered in favour of Facade in 11729/05 is set aside. 2. Ordered that the costs of this motion be costs in the appeal. 3. Ordered that the appeal be expedited, but not so as to displace matters already fixed for hearing.

CATCHWORDS: BUILDING AND CONSTRUCTION - PRACTICE - Stay of order - Judgment pursuant to s.25 of Building & Construction Industry Security of Payment Act - Separate proceedings for declaration that adjudication determination was void - Enforcement of judgment stayed on amount being paid into Court - Declaration made and order made for payment out of money - Appeal - Whether order for payment out should be stayed pending setting aside of judgment and/or determination of appeal.

LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999 s.25

Herscho v. Expile Pty. Limited [2004] NSWCA 468 CASES CITED: McLaughlin's Family Restaurant v. Cordukes Limited [2004] NSWCA 447

Facade Innovations Pty. Limited - appellant PARTIES: Timwin Constructions Pty. Ltd. - 1st respondent

FILE NUMBER(S): CA 40457/05

Mr. N.A. Nicholls for appellant COUNSEL: Mr. M. Christie with V. Culkoff for 1st respondent

Doyles, Sydney for appellant SOLICITORS: David Campbell-Williams, Sydney for 1st respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division