Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) [2016] NSWCA 382

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 3) [2016] NSWCA 382 Hearing dates: 23 December 2016 Decision date: 23 December 2016 Before: Basten JA Decision: (1) Upon the First Respondent undertaking to pay the sum of $314,504.72 into Court by 5pm on 6 January 2017, order that the Appellant is restrained from:

(a) requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act); (b) filing an adjudication certificate as a judgment for a debt in any court pursuant to s 25 of the Act; (c) serving a notice on the Plaintiff pursuant to s 24(1 )(b) of the Act, in connection with the determination made by the Second Respondent dated 15 February 2016 until after the Relevant Date or until further order of this Court or of the High Court.

In this order, "Relevant Date" means: (a) 5pm on 6 January 2017; or (b) if an application for special leave to appeal to the High Court from the orders made by the Court of Appeal on 23 December 2016 is made on or before 6 January 2017: (i) the date on which that application is refused; or (ii) if that application is granted, the date on which the appeal is determined.

(2) Liberty to apply on two days' notice.

(3) Each party is to bear its own costs of the stay application. Catchwords: PROCEDURE – civil – stay of appeal judgment – proposed application for special leave to appeal – issue of general importance – protection of subject matter of dispute – balance of convenience – offer to pay sum into court Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 Category: Consequential orders (other than Costs) Parties: Shade Systems Pty Ltd (Appellant) Probuild Constructions (Aust) Pty Ltd (First Respondent) Doron Rivlin (Second Respondent) Representation: Counsel: Mr D Hume (Appellant) Mr S Robertson (First Respondent)