After an unsuccessful appeal to the High Court challenging an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 (NSW), funds paid into court as a condition of a stay should ordinarily be released to the successful claimant. The legislative policy assigning the risk of the claimant's insolvency to the respondent applies with particular force where the claimant's entitlement to the progress payment has been conclusively determined. The mere risk of dissipation — being the very risk the legislature assigned to the respondent — is insufficient to justify withholding the funds absent exceptional circumstances such as deliberate delay tactics or restructuring of financial affairs.
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