A-Civil Aust Pty Ltd v Ceerose Pty Ltd

[2023] NSWCA 144

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Adjudication of payment claims
4. › Stay of payment out pending contractual proceedings or appeal
5. › Risk of insolvency of claimant
6. › Whether policy of Act assigns risk of insolvency to principal
7. › Whether production of financial records of claimant justified
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 25, 32, 32B
1. Practice and Procedure
2. › Interlocutory orders
3. › Notice to produce
4. › Production of financial records
5. › Whether order for production justified where party did not rely on underlying documents
6. › Whether primary judge failed to address relevant consideration
7. › Uniform Civil Procedure Rules 2005 (NSW), r 34.1
8. › Civil Procedure Act 2005 (NSW), ss 14, 61, 68
1. Appeals
2. › Interlocutory appeal
3. › Leave to appeal
4. › Whether issue of principle raised
5. › Whether substantial reasons to allow appellate review
6. › Supreme Court Act 1970 (NSW), s 75A

Quick Take

Acting for principals/developers in Security of Payment Act disputes, practitioners bear a heavy burden to establish a real likelihood of insolvency before obtaining production of a claimant's financial records, and the policy of the Act constrains the grant of interlocutory stays and production orders.