Paul Michael Pty Ltd (subject to deed of company arrangement) v Urban Traders Pty Limited [2010] NSWSC 1246

New South Wales Supreme Court

CITATION : Paul Michael Pty Ltd (subject to deed of company arrangement) v Urban Traders Pty Limited [2010] NSWSC 1246

HEARING DATE(S) : 10 and 11 May 2010

JUDGMENT DATE : 29 October 2010

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : Refer to paras 77-79 of reasons.

CATCHWORDS : BUILDING AND CONSTRUCTION – application for stay of execution of judgments obtained pursuant to adjudications made under Building and Construction Industry Security of Payment Act 1999 and consequential orders – defendant owned land and engaged plaintiff as builder under construction agreement – both parties alleged breaches of construction agreement – plaintiff obtained judgments pursuant to adjudications and consequential orders – plaintiff subsequently subject to deed of company arrangement – defendant lodged proof of debt with deed administrator – proof of debt pending determination - BUILDING AND CONSTRUCTION – whether adjudications would operate practically as final determination of parties' rights if judgments not stayed – effect of builder's insolvency on operation of Act – where defendants may be prejudiced by inability to recover money paid under judgments if not stayed – whether serious question that defendant not indebted to plaintiff or debt discharged by set-off on ultimate determination of proof of debt – where defendant elected to take work out of plaintiff's hands instead of terminating contract for plaintiff's breach – where defendants subsequently repudiated contract – whether serious questions that defendants entitled to damages claimed in proof of debt – where no security proffered by defendants for outstanding judgments – plaintiff's entitlement to enforce judgments in absence of security – moneys to be held on trust until proof of debt ultimately determined - PROCEDURE – where plaintiff obtained charging order under Civil Procedure Act 2005, s 106 against defendant's land – whether charging order over land valid – whether Registrar-General empowered to register restraining order against land – orders to be discharged