Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 150

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 150 Hearing dates: 25 May 2015 Decision date: 25 May 2015 Before: Leeming JA Decision: 1. Order 2 made on 15 May 2015 is stayed until seven days after the determination of the appeal. 2. I note the appellant's undertaking to prosecute the appeal with reasonable expedition and diligence. 3. I direct that the appellant file and serve its written submissions and the red book on or before 5 June 2015. 4. I direct the respondent to file and serve its submissions on or before 19 June 2015. 5. The appellant to file and serve the blue, black and orange books on or before 24 June 2015. 6. The appeal be listed for hearing on 29 June 2015 with an estimate of one day. 7. I order that the costs of the notice of motion filed 18 May 2015 be costs in the appeal. Catchwords: PRACTICE – stay pending appeal – monies already paid into court – whether exceptional circumstances need be shown where claim arises under Building and Construction Industry Security of Payments Act 1999 (NSW) – no evidence of prejudice – limited evidence of financial circumstances of respondent – appeal capable of being heard in 3-5 weeks – stay ordered Legislation Cited: Building and Construction Industry Security of Payments Act 1999 (NSW), s 25 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Bobolas v Waverley Council [2014] NSWCA 78 Bobolas v Waverley Council [2014] NSWCA 131 Facade Innovations Pty Ltd v Timwin Constructions Pty Ltd [2005] NSWCA 197 Herscho v Expile Pty Ltd [2004] NSWCA 468 McLaughlin's Family Restaurant v Cordukes Ltd [2004] NSWCA 447 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2015] NSWSC 502 Category: Procedural and other rulings Parties: Lewence Construction Pty Ltd ACN 155 305 507 (Applicant) Southern Han Breakfast Point Pty Ltd ACN 155 283 239 (Respondent) Representation: Counsel: S Robertson (Applicant) M Christie SC with G Huxley(Respondent)