CIVIL PROCEDURE — security for costs — threshold question — whether primary judge prohibited from taking into account unpaid judgment obtained under Building and Construction Industry Security of Payment Act 1999 (NSW) — s 32(2) not concerned with the procedural conduct of civil proceedings under a construction contract but with their substantive outcome — non-payment of judgment debt not something “done under or for the purposes of this Part”
Quick Take
1Section 32(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) is directed at the substantive outcome of civil proceedings arising under a construction contract, not their procedural conduct; it does not prevent a court from taking into account an unpaid SOP Act judgment debt on a security for costs application.
2Non-payment of a judgment debt is not something done 'under or for the purposes of' Part 3 of the SOP Act; the same reasoning on a security for costs application applies irrespective of the source of the judgment debt or the mechanism by which it was obtained.
3A corporate plaintiff's deliberate refusal to pay a properly obtained judgment debt is relevant to the threshold question on security for costs, as it supports an inference that those controlling the corporation may organise its affairs to avoid meeting future costs liabilities.
Case Details
Citation[2026] NSWCA 157
CourtNSWCA
JurisdictionNew South Wales
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