Supreme Court New South Wales Medium Neutral Citation: Sydney Building Group Pty Ltd v Edwards [2013] NSWSC 205 Hearing dates: 14/03/2013 Decision date: 18 March 2013 Before: Fullerton J Decision: 1. All monies currently held in Commonwealth Bank of Australia Account Number 10670190 in the name of Snelgroves P/L ITF David Edwards & Leigh Edwards & Sydney Building Group P/LCMA together with all interest accrued be paid to Gadens Lawyers Trust Account within 7 days of today's date. 2. The first and second defendants to pay the plaintiff's costs. Catchwords: PROCEDURE - judgments and orders - stays Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Category: Principal judgment Parties: Sydney Building Group Pty Ltd (Plaintiff) David Antony Edwards (1st Defendant) Leigh Edwards (2nd Defendant) Representation: Counsel: M Galvin (Plaintiff) M Klooster (Defendants) Solicitors: Gadens Lawyers (Plaintiff) Snelgroves (Defendants) File Number(s): 2012/200995 2012/201034 Judgment 1HER HONOUR: By notice of motion filed with leave the plaintiff (Sydney Building Group Pty Ltd - "SBG") seeks an order that all money currently held in a nominated bank account with the Commonwealth Bank, together with all accrued interest, be paid to its solicitor's trust account within seven days. An order for costs is also sought. 2On the application of the defendants (David and Leigh Edwards -"the homeowners") monies were lodged in that account in August 2012 pursuant to interim orders made by Garling J in July 2012 preventing the plaintiff from enforcing two judgments entered in this Court in June 2012 in the total sum of $60,215.15. 3The judgments relate to costs orders in favour of SBG following proceedings brought by them in August 2009 in the District Court successfully appealing a decision from the Consumer Trader and Tenancy Tribunal ("the CTTT") and an appeal to the Court of Appeal from the District Court in June 2011 by the homeowners which was dismissed. 4In delivering judgment dismissing the appeal and awarding costs in favour of SBG, the Court of Appeal remitted the matter for further hearing to the CTTT. It was common ground that the question resolved to finality in the Court of Appeal was limited to whether SBG were entitled to suspend building works for non-payment of money said to be payable by the homeowners for the removal of soil from the building site and that a residual question related to whether SBG were entitled to suspend building works for non-payment in circumstances where it was said by the homeowners that the building works were not performed to "lock up" stage. 5On 28 December 2012 the CTTT resolved that question against the homeowners. 6On 30 January 2013 the homeowners filed a summons in the District Court appealing that determination. Pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 the appeal is limited to an error of law. The summons commencing the appeal was tendered on the motion together with the reasons for decision from which the appeal is brought. 7Save for the fact that the proceedings concern the same building contract, SBG submitted that the costs judgments the subject of the interim stay are unrelated to the further hearing in the CTTT, which is currently the subject of appeal to the District Court. The costs orders in favour of SBG were made consequent upon a successful appeal to the District Court which was confirmed on appeal to this Court on a question separate to that which is the subject of the current challenge. SBG submitted that in these circumstances there is no legitimate basis at this time for depriving it of the costs orders in its favour. Additionally, there is no power to award costs in favour of a successful party in the CTTT so that no part of the pending appeal to the District Court involves any issue as to costs. Counsel for SBG submitted that the fact that the homeowners are desirous of commencing another round of appellate review, legally unrelated to the question which was resolved in SBG's favour and to finality in the Court of Appeal, is not a proper basis for continuing the interim stay. 8The homeowners seek to resist the orders sought by motion on the basis that they have arguable grounds upon which to appeal the further decision of the CTTT and that, were the funds currently held under restraint to be released to SBG, and were they successful on appeal, they might not be able to recover damages. 9Detailed submissions were directed to the principles according to which a stay of a judgment will be awarded in the exercise of discretion. Those principles are uncontroversial. In my view, however, they are not determinative of whether the stay should be extended or, to put it more accurately, whether the homeowners can resist the order sought by SBG that the funds under restraint be released. Quite apart from whether they have an arguable case in the District Court (about which I prefer to express no view, save as to observe that after careful consideration of the reasons for the decision and the grounds for review in the summons the error of law is not immediately apparent), I am not persuaded that the the discretion inherent in the exercise of the jurisdiction to continue the stay should be exercised in favour of the homeowners. Their motivation in resisting the order sought by SBG is to achieve the practical effect of an order for security for costs in circumstances where, as their counsel frankly conceded, there is no power in the CTTT to make such an order. He also accepted that since the homeowners are the moving party for review of that decision to the District Court, any application for security for costs in that jurisdiction would be strongly resisted and likely refused. 10I am not persuaded that in these circumstances there is any legitimate basis for continuing the interim orders the effect of which would be to deprive SBG of the benefit of the costs orders made in their favour and, accordingly, I make orders as follows: 1. All monies currently held in Commonwealth Bank of Australia Account Number 10670190 in the name of Snelgroves P/L ITF David Edwards & Leigh Edwards & Sydney Building Group P/LCMA together with all interest accrued be paid to Gadens Lawyers Trust Account within 7 days of today's date. 2. The first and second defendants to pay the plaintiff's costs. ********** 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. Decision last updated: 25 March 2013