TAYLOR PROJECTS GROUP PTY LIMITED V BRICK DEPT. PTY LIMITED & ORS [2005] NSWSC 571
Supreme Court of New South Wales – 17 June 2005
FACTS
Taylor Project Group Pty Ltd (‘Taylor’) entered into a construction contract with Brick Dept. Pty Limited (‘Brick’) for the carrying out of brick and block laying work at a site in Holden Street, Ashfield. Brick made an Adjudication Application under the Building and Construction Security of Payment Act 1999 (NSW) (‘the Act’). The Adjudicator determined that Taylor was required to pay Brick the sum of $109,987.80.
Taylor and Brick subsequently entered into an agreement in which Taylor agreed to refrain from seeking an injunction preventing Brick from entering judgment for the adjudicated amount and would pay the adjudicated amount into Court on the basis that that the parties would obtain an early listing of the matter in the Supreme Court for determination and that the sum would be paid to Brick if it succeeded in those proceedings. Consent orders to that effect were made by the Court on 11 March2005.
Proceedings were subsequently brought by Taylor against Brick in the Supreme Court, seeking to impugn the adjudication determination. The matter was heard on 5 May 2005 and the Court held that the adjudication determination was valid. The proceedings were stood over for argument as to costs, orders and questions concerning a Stay of Orders.
At a further hearing, commencing on 15 June 2005, Taylor sought an Order from the Court restraining Brick from taking steps to enforce the judgment obtained on 5 May 2005, and a further Order restraining Brick from filing any adjudication certificate as a judgment in any court. Taylor in its submissions relied on the decision in Grosvenor Constructions (NSW) Pty Ltd v Musico [2004] NSWSC 344 in which it was held that where a claimant clearly being insolvent had obtained an adjudication certificate, it was appropriate to order a stay of the execution of the judgment debt. Taylor argued that it would otherwise suffer irreparable prejudice as payment pursuant to the judgment debt could never be recouped.
ISSUE
If a claimant is close to insolvency, can the Respondent obtain an order of stay of the execution of the judgment debt?
FINDING
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