Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234 Hearing dates: 29 August 2016 Decision date: 29 August 2016 Before: Basten JA Decision: (1) Grant leave to the appellant to amend its notice of motion filed on 17 August 2016.

(2) Stay order (4) made in the Equity Division on 15 June 2016 (relating to the costs in the Division) pending the outcome of the appeal.

(3) Adjourn the first respondent's motion seeking security for its costs of the appeal to the Registrar's list on Monday 12 September 2016.

(4) To the extent that the issue of subpoenas is necessary, grant leave to the first respondent to issue subpoenas for production of documents to Michael Jolly, Jillian Jolly, Trent Jolly and MPJ Investments Pty Ltd, such subpoenas to be returnable before the Registrar on 8 September 2016.

(5) Any subpoenas issued pursuant to order 4 may be served by providing a copy thereof to the appellant's solicitor, Mr Kaluski, electronically.

(6) Grant leave to the parties to approach the Registrar to obtain a date for hearing on or after the matter is returned to the Registrar's list on 12 September 2016.

(7) The costs of each motion are to be costs in the appeal. Catchwords: PRACTICE AND PROCEDURE – stay of costs order pending appeal – expedition – reasonable prospects of success – issue of general importance - possibility that enforcement of costs order would stultify appeal

PRACTICE AND PROCEDURE – security for costs – respondent to show order against corporation would not stultify appeal – whether those standing behind company have means to provide security – application for adjournment – respondent seeking subpoenas to test statements as to lack of means of shareholders and directors Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth), s 1335 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 385 Kalifair v Digi-Tech Australia Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130 Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288 Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2016] HCATrans 173 Category: Procedural and other rulings Parties: Shade Systems Pty Ltd (Appellant) Probuild Constructions (Aust) Pty Ltd (First Respondent) Representation: Counsel: Mr M Christie SC (Appellant) Mr S Robertson (First Respondent)