Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2018] NSWCA 34 Hearing dates: 28 February 2018 Date of orders: 28 February 2018 Decision date: 28 February 2018 Before: Payne JA Decision: Application for stay of order 1 made on 28 February 2018 is refused Catchwords: CIVIL PROCEDURE – application for a stay of order releasing funds applicant ordered to pay to respondent by this Court as a condition of stay pending applicant's appeal to the High Court of Australia – unsuccessful appeal to High Court of Australia by applicant – application refused Legislation Cited: Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Reinhardt v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 Texts Cited: None Category: Consequential orders (other than Costs) Parties: Shade Systems Pty Ltd Probuild Constructions (Aust) Pty Ltd Doron Rivlin (Second Respondent) G A Atkins (Third Respondent) G T Connellan (Fourth Respondent) J Cooper (Fifth Respondent) L Gardner (Sixth Respondent) S C Harris (Seventh Respondent) M J Huckerby (Eighth Respondent) M J Lee (Ninth Respondent) P McCarthy (Tenth Respondent) R McKenna (Eleventh Respondent) S G O'Sullivan (Twelfth Respondent) M A Pitt (Thirteenth Respondent) P W Utiger (Fourteenth Respondent) S Wallace (Fifteenth Respondent) C A Williams (Sixteenth Respondent) Representation: Counsel: M Christie SC / D Hume (Shade Systems Pty Ltd) S Robertson (Probuild Constructions (Aust) Pty Ltd) Solicitors: Moray & Agnew (Shade Systems Pty Ltd) Maddocks (Probuild Constructions (Aust) Pty Ltd) Moray & Agnew (Third to sixteenth respondents) File Number(s): 2016/205479 Publication restriction: None [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] . . Judgment - EX TEMPORE [Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194] and published 14 March 2018] 1. PAYNE JA: Judgment was handed down in this matter this afternoon: Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33. Familiarity with that decision is assumed here. The same defined terms as are used in that judgment will be used here. The principal effect of the orders pronounced this afternoon is the release of funds held by the Court as security for a stay pending appeal to the High Court from the decision of this Court ordered by Basten JA in December 2016. The High Court appeal has now been concluded and I have ordered that the funds lodged be released to Shade Systems. 2. Probuild submitted that a stay should be granted to enable consideration of a foreshadowed review under s 46(4) of the Supreme Court Act 1970 (NSW) of my decision. Probuild repeats the submission made in the primary proceedings that unless the orders sought are made, its rights will be irremediably affected. Shade Systems opposes the grant of any stay. 3. I refuse the application for a stay of order 1 just pronounced. My reasons are as follows: 1. s 46(4) permits a review of a single judge of appeal. A material error of fact or law must be demonstrated. Section 46(4) imposes a heavy burden on an applicant for review: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]. My decision is a discretionary decision and, accordingly, a discharge of the orders involves an even heavier burden; 2. the considerations identified in s 56 of the Civil Procedure Act 2005 (NSW) militate against the grant of a stay. Probuild has now conducted litigation in three levels of the courts, before Emmett AJA, a five-member bench of this Court and in the High Court. This application for a delay of a release of money paid into court as a condition of the stay pending appeal to the High Court occupied most of the Monday's referrals list. This application is a further attempt to prevent making the progress payment to Shade Systems that the High Court has conclusively determined Probuild is obliged to make. It is not consistent with the just, quick and cheap determination of litigious disputes to have a further stay whilst the Court of Appeal considers a potential review under s 46(4) in the light of the very considerable judicial resources which have now been devoted to determining the question of whether Probuild is obliged to make the progress payment to Shade Systems; 3. there has been substantial delay by Probuild in making any application for a stay. This proceeding will have the effect of staying Shade Systems rights but it should be remembered that, in truth, it is an application to prevent release of security ordered to be provided for a stay obtained by Probuild pending an appeal to the High Court. Other than, perhaps, in the very recent past, no attempt has been made by Probuild to obtain orders from the Equity Division about these funds at any point during the time this matter has been litigated. Probuild's delay tends strongly against the grant of a stay. In my view there is prejudice in the grant of a stay to Shade Systems, not only in the non-payment of the progress payment to which it is entitled but in now, under the guise of seeking to prevent payment out of security lodged with the Court for the High Court appeal, embarking on an entirely new species of litigation. As I have found in the principal judgment, the outcome of the High Court special leave application, at least as to terms, may have been different if Probuild had made known that it intended to make an application of this kind if it was ultimately unsuccessful in that Court. This matter could have been determined much earlier; and 4. the funds the subject of these motions were paid into Court as a condition of a stay pending an application to the High Court of Australia. The orders were made by a single judge of the Court. The order for payment out has been made by a single judge of the Court following the pronouncement of orders and the publication of reasons by the High Court. I do not regard it as in the interests of the just, quick and cheap resolution of litigation to impose a further stay whilst a potential review of my decision is considered. The essence of my discretionary decision is that authority, including authority of the High Court, tends strongly in favour of the proposition that, where Probuild is obliged by the Security of Payment Act to make a progress payment it may not recover even it is ultimately successful in Commercial List proceedings, the risk of insolvency lies upon Probuild. 1. For those reasons I refuse to stay order 1 of the orders just announced. ********** Amendments 15 March 2018 - Typographical errors in coversheet and [3] amended. 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: 15 March 2018