BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 25, 32 — where plaintiff seeks to enforce a judgment entered after an adjudication — where defendant seeks orders for payment by monthly instalments — whether evidence established a just basis for making such an order — where defendant relies on case sought to be established in other proceedings in which it challenges the result of the adjudication
CIVIL PROCEDURE — subpoena and notice to produce — motion — where defendant seeks production of financial records by subpoena and notice to produce — where relevance disputed — relevance not established
Quick Take
1A judgment debtor seeking an instalment order in respect of a judgment enforcing an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) cannot rely on claims advanced in separate s 32 proceedings challenging the underlying debt to establish relevance of documents or to justify the instalment order; the judgment remains binding until set aside.
2On an application for payment by instalments under s 107 of the Civil Procedure Act 2005 (NSW), the onus falls on the judgment debtor to establish its financial circumstances and a just basis for the order; evidence that sheds limited light on financial position and instead advances a case pursued in other proceedings is insufficient to discharge that onus.
3Where a judgment debtor's assets are more than sufficient to pay the judgment debt, and the evidence does not reliably establish an inability to pay or even a capacity to meet proposed instalments, the instalment application must fail.
