A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty Ltd (No 2) [2019] NSWSC 624

Supreme Court New South Wales

Medium Neutral Citation: A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty Ltd (No 2) [2019] NSWSC 624 Hearing dates: 16 April; 9 May; 27 May 2019 Date of orders: 27 May 2019 Decision date: 27 May 2019 Jurisdiction: Equity - Commercial List Before: Parker J Decision: Judgment be entered in favour of the plaintiff in $487,324.38. The defendant's application for a stay of enforcement of the judgment be refused. The sum of $466,120.80 paid into Court by the defendant together with any interest accrued on that sum be paid out to the plaintiff. The defendant pay the plaintiff's costs of the proceedings on its claim. Catchwords: BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – application for stay of enforcement of judgment entered in favour of the plaintiff – application opposed and orders sought for payment of monies previously paid into court pending determination of claim for judgment – where owner or head contractor is liable to contractor but has an offsetting claim against that contractor under the Building and Construction Industry Security of Payment Act 1999 (NSW) – principles for the grant of a stay of payment pending determination of claim – orders for stay of enforcement of judgment conceptually distinct from orders for release of monies paid into court - interim nature of entitlements under the Act relevant to application for stay where evidence establishes that payment will be final for practical purposes – evidence of $1 company does not itself establish that monies paid into court could not be later recovered from owner or head contractor – application for stay sought on further basis of prior agreement by consent that plaintiff's application for summary judgment be dismissed in return for monies to be paid into court – prior agreement compromised immediate application for summary judgment but did not prevent determination of contractor's claim and payment of judgment sum. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 15(4)(b), 23, 25 Cases Cited: A-Tech Australia Pty Ltd v Top Pacific Aust Pty Ltd [2019] NSWSC 404 Greenwood Futures v DSD Builders (No 2) [2018] NSWSC 1471 Grosvenor Constructions (NSW) Pty Limited (in administration) v Musico & Ors [2004] NSWSC 344 Hakea Holdings Pty Limited v Denham Constructions Pty Ltd; Baptistcare NSW & Act v Denham Constructions Pty Ltd [2016] NSWSC 1120 Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365 Veolia Water Solutions v Kruger Engineering [No 3] [2007] NSWSC 459 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 November 2002 at 6541-6542 Category: Consequential orders (other than Costs) Parties: A-Tech Australia Pty Ltd (Plaintiff) Top Pacific Construction Aust Pty Ltd (Defendant) Representation: Counsel: FP Hicks SC/J Nathan (Plaintiff) F Santisi (Defendant)