New South Wales Court of Appeal CITATION: Baseline Constructions Pty. Ltd. v. Classic Group Painting Services Pty. Ltd. & Ors. [2006] NSWCA 123 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 15 May 2006 JUDGMENT DATE: 15 May 2006 JUDGMENT OF: Hodgson JA at 1 EX TEMPORE JUDGMENT DATE: 05/15/2006 DECISION: Notice of Motion dismissed. Claimant to pay the opponent's costs of the Notice of Motion. CATCHWORDS: PROCEDURE - APPEAL - Whether relief in nature of a stay would be granted because of strength of appellant's case on appeal. PARTIES: Baseline Constructions Pty. Ltd. - claimant Classic Group Painting Services Pty. Ltd. - opponent FILE NUMBER(S): CA 40276/06 COUNSEL: Mr. F. Kalyk for claimant Mr. F. Hicks for opponent SOLICITORS: KQ Lawyers, Bowral for claimant Kreisson Legal, Sydney for opponent LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC55028/06 LOWER COURT JUDICIAL OFFICER: Einstein J LOWER COURT DATE OF DECISION: 09/05/2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 397 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40276/06 HODGSON JA Monday 15 May 2006 BASELINE CONSTRUCTIONS PTY. LTD. V. CLASSIC GROUP PAINTING SERVICES PTY. LTD. & ORS. Judgment 1 HODGSON JA: I am dealing with an application by the claimant Baseline for an extension of a restraining order, made by Bergin J on 26 April 2006, until the determination of an appeal. I note that, having regard to the amount in issue, it appears that leave to appeal would be required. However I do not propose to determine this notice of motion on the basis that no application has yet been made for leave to appeal. 2 I do not have before me any evidence that if a sum of around $50,000 is paid over there is a high risk or even an appreciable risk that it would not be recoverable. 3 However Mr Kalyk has submitted that in this particular case the relief should be granted without that evidence because of the strength of the claimant's case on the appeal. Mr Kalyk has submitted that the primary Judge did not deal with a contention that the adjudicator's finding that the adjudication response contained reasons which were in his view contrary to s.20(2B) of the Act, and his decision then to exclude those reasons from consideration, amounted to a denial of natural justice and vitiated the decision. This contention, he submitted, was not considered by the primary judge, and had it been so considered, that was a matter that should have given Baseline success in the proceedings. 4 I think a single Judge hearing an application of this sort should be very reluctant to enter deeply into the merits of the appeal. It seems to me also that the primary Judge appears to have taken the view that a decision by the adjudicator as to the application of s.20(2B) was a matter for the adjudicator to determine; and it seems to me that a decision along those lines could well be correct. It seems to me that the claimant has an arguable appeal, but I do not think it is a case where I can put the matter any higher than that. 5 In those circumstances, I do not think a case is made out for extension of the relief previously granted, and for those reasons I dismiss the notice of motion and I order the claimant to pay the opponent's costs of the notice of motion. The exhibits may be returned. ********** 22/05/2006 - Correction to spelling error in citation on coversheet - Paragraph(s) citation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.