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[2026] NSWCA 204
procedural. Stay of enforcement granted conditionally. Martinus was required to pay $26,431,253.63 into court within 14 days of the 25 September 2026 orders. The stay was effective immediately but would lapse...
Martinus did not appeal the judgment enforcing the arbitral awards themselves. It sought to appeal only the refusal to pause enforcement while it pursued leave to appeal. The Court considered the proposed appeal arguable, but not strong, and found no evidence that Qube would be unable to repay the judgment debt if Martinus later succeeded. Because the competing considerations were finely balanced, the Court allowed a stay only if Martinus paid the unpaid judgment amount into court within 14 days. This preserved the money for Qube while preventing immediate enforcement against Martinus during the leave process.
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2,576 words · generated 08/10/2026
Price AJA dealt with an application by Martinus Rail Pty Ltd for a stay of enforcement of a judgment obtained by Qube RE Services (No 2) Pty Ltd as trustee for the Moorebank Industrial Terminals Assets Trust. The underlying judgment, made by Peden J on 4 September 2026, enforced three partial arbitral awards as a judgment debt of $26,439,281.58 under s 35(1) of the Commercial Arbitration Act 2010 (NSW) (the CA Act) ([2], [13]-[15]).
7 cited instruments linked from this judgment.
The dispute arose from two contracts made on 8 July 2022 for infrastructure work at the Moorebank Intermodal Terminal Project ([6]). Martinus had previously obtained adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW), and Qube paid approximately $80 million. Qube later commenced arbitration seeking recovery of amounts it said Martinus had no contractual entitlement to retain ([7]).
The arbitrator decided separate questions about whether specified Martinus claims were barred by contractual provisions. In three partial awards, he found relevant claims barred and ordered repayment of the corresponding amounts. The final award specified $26,439,281.58, inclusive of interest to 5 June 2026, payable that day ([9]-[12]). Martinus did not pay by that date. Qube then applied to the Supreme Court to enforce the awards ([13]).
Martinus resisted enforcement, principally arguing that enforcement would offend public policy because its argument under s 34 of the Security of Payment Act had not been resolved. The primary judge rejected that contention, concluding that the partial awards were final and binding and could not then be revisited, and ordered enforcement ([14]-[15]).
Martinus' proposed appeal did not challenge the enforcement judgment itself. Its complaint was limited to the primary judge's dismissal of the application for a stay ([4]-[5]). Before the Court of Appeal, Martinus argued that cl 42.12 of the contracts gave it a separate right to withhold payment while a dispute remained unresolved, and that the primary judge had erred in dismissing the stay application ([17]-[18], [24]-[26]).
Qube opposed a stay, relying on the arbitrator's payment order, the finality and enforceability of the awards, the CA Act's objects, and the absence of evidence of prejudice to Martinus. Qube also proposed that, if a stay were granted, Martinus should pay the judgment amount into court ([29]-[31]). Qube had obtained only $8,027.95 through a garnishee order served on NAB, and nothing through one served on CBA ([22]).
Price AJA granted a stay, but only on condition Martinus paid the remaining $26,431,253.63 into court within 14 days. The order was effective immediately but would lapse if the condition was not met by 9 October 2026. Costs of the motion were made costs in the appeal ([48]).
The Court applied the established framework for a stay pending appeal. A stay is discretionary, not automatic. The starting point is the interests of justice, with attention to whether the proposed appeal raises serious issues, whether the applicant faces real prejudice without a stay, and how the balance of convenience affects the parties ([32]-[35]). The successful party below is prima facie entitled to the benefit of its judgment ([35]).
Price AJA considered the proposed appeal in light of two constraints. First, the appeal was from a discretionary decision about practice and procedure, a class of decision on which appellate courts are cautious in granting leave. Secondly, Martinus acknowledged that it needed to establish error of the kind described in House v The King ([5]). The Court was prepared to treat the appeal as arguable, but expressly assessed it as not strong ([39]). That was a preliminary assessment for the stay application, not a determination of the leave application or the merits.
On prejudice, Martinus said enforcement could diminish the practical utility of the appeal. But it did not contend that Qube could not repay the money if Martinus succeeded, or that repayment would be difficult or delayed ([27]). Price AJA reasoned that, if Martinus succeeded, Qube would be obliged to return the judgment amount and would then be restrained from taking further steps to enforce it. The Court therefore was not satisfied that the appeal would be entirely rendered nugatory, although its practical utility might be reduced ([40]).
The CA Act context mattered. The Act's paramount object is to facilitate the fair and final resolution of commercial disputes without unnecessary delay or expense. Section 5 limits court intervention to circumstances provided for by the Act, and s 35 provides for recognition and enforcement of awards where no ground under s 36 is established ([43]). Martinus had not challenged the primary judgment enforcing the awards on their merits. Price AJA was mindful of the intended certainty and finality of arbitration and cautioned against allowing a stay to subvert the Act's object ([5], [43]).
However, those considerations did not resolve the stay application in Qube's favour. The convenience factors were described as finely balanced. The stay would preserve the position while the leave application was determined; Qube had recovered only a modest amount by garnishee orders; and there was no suggestion that the leave application would be delayed in a way that prejudiced Qube ([22], [41], [44]).
The condition requiring payment into court was the practical compromise. It preserved the amount in a controlled setting, while keeping the balance immediately available to Qube if Martinus was unsuccessful. It also protected against the possibility that Martinus' ability to pay would diminish during the stay ([44]-[45]). Price AJA considered 14 days sufficient in light of Qube's earlier payment of about $80 million, the time already elapsed since the arbitrator's payment deadline, and Martinus' scale as a construction and infrastructure company ([46]). The result was therefore a conditional stay, not a ruling that Martinus could withhold payment under cl 42.12 or that the arbitrator's awards were invalid.
The judgment presents the applicable stay principles as established, not as a new test. It draws on authorities including Alexander v Cambridge Credit Corporation Ltd, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd, and Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd ([33]-[34]). In the formulation quoted from Michael Hill Jeweller, an applicant must show serious issues for determination and a real risk of prejudice or damage; if those matters are shown, the Court considers convenience and the parties' competing rights ([34]).
The judgment also restates that the successful party is prima facie entitled to the benefit of the judgment, and that an appeal alone does not justify a stay. Examples of relevant grounds include a significant risk that money paid could not be recovered, or that the appeal would otherwise be rendered nugatory ([35]). Security can be required as the price of a stay, protecting the judgment creditor against the risk that assets once available to meet the judgment may no longer be available ([36]).
For procedural and discretionary decisions, the judgment emphasises appellate caution and the need to establish House v The King error ([5]). In assessing whether there is an arguable appeal for stay purposes, the Court ordinarily does not decide its strength or prospects, but may make a preliminary assessment to exclude an appeal without real merit that would simply gain time ([37]).
The decision applies those principles to enforcement of an arbitral award. It recognises the CA Act's emphasis on finality and limited court intervention, while treating a stay as possible in appropriate circumstances. Price AJA noted that prior authorities showed some hesitation about granting a stay where there was no challenge to the award, referring to Onerati v Phillips Constructions Pty Ltd (in liq), Cockatoo Dockyard Pty Ltd v Commonwealth of Australia (No 3), and Indian Farmers Fertiliser Cooperative Ltd v Gutnick (No 2) ([43]). The judgment does not purport to resolve those authorities into a comprehensive rule. Instead, it balances the particular circumstances and fashions a conditional order.
The practical contribution is consequently narrow. The Court did not displace the enforcement framework under ss 35 and 36, decide the construction of cl 42.12, or determine whether the unresolved s 34 point had substantive merit. It illustrates that, where the competing considerations are close, a stay may be conditioned on payment into court so that the judgment creditor's position is protected while the appellate process proceeds ([44]-[48]).
At [32], Price AJA states: “The overriding principle is what is required by the interests of justice.” In plain English, the Court's power is not exercised mechanically. The circumstances of both parties and the consequences of granting or refusing a stay must be weighed.
At [34], the judgment describes the stay test as requiring serious issues for appeal and a real risk of prejudice, followed by consideration of convenience and competing rights. This makes clear that a proposed appeal is not enough by itself. The applicant must connect the appeal to a practical risk that justifies pausing enforcement.
At [35], the Court says the successful party is “prima facie entitled to the benefit of a judgment”. That means a stay temporarily withholds a benefit otherwise due to the judgment creditor, so the applicant needs a sufficient basis for the Court to exercise its discretion.
At [39], Price AJA says the proposed appeal was “arguable” but “not ... strong”. This is deliberately limited language. It does not predict success or decide whether leave should be granted. It records only that the proposed grounds were sufficient to be considered in assessing the stay.
At [40], the Court says it was “not satisfied that the appeal would entirely be rendered nugatory”. Martinus had not said Qube would be unable to repay the money if Martinus later succeeded. The possibility of repayment meant that immediate enforcement would not necessarily make a successful appeal worthless, though it could reduce its practical utility.
At [43], Price AJA refers to the CA Act's purpose of finality and says Martinus should not be allowed to subvert that purpose by holding up enforcement. In context, this was a significant factor, not an absolute prohibition on a stay. The eventual order was a stay, but one secured by payment into court.
At [44]-[45], the Court explains its solution: pay the balance into court, then enforcement is stayed. In plain English, Martinus would not pay the money directly to Qube during the stay, but the money would be protected and available to Qube if Martinus did not succeed. The Court considered this preserved the status quo while reducing the risk to the judgment creditor.
This decision is most directly relevant to a procedural situation where a party seeks a stay of enforcement while seeking leave to appeal, and the proposed appeal concerns the refusal of an earlier stay rather than the underlying judgment. Martinus expressly did not challenge the enforcement judgment itself ([4]-[5]).
The reasoning is especially pertinent where the judgment enforces arbitral awards and the applicant's proposed appeal is subject to appellate restraint because it concerns a discretionary procedural decision. The Court considered the need to show House v The King error and its general caution about leave in such matters ([5], [39]).
The decision also addresses a case where the applicant claims enforcement could make an appeal practically ineffective, but does not establish that the judgment creditor would be unable to repay the money if the appeal succeeded. Here, no party said the other would be unable to pay the debt, and there was no evidence of financial prejudice arising from either party's position ([27], [40]).
A conditional stay may be relevant where the balance of convenience does not clearly favour either party, and payment into court could protect the judgment creditor while temporarily preventing direct enforcement. In this case, the Court considered the modest sum recovered through garnishee orders and the need to preserve the ability to pay ([22], [44]-[46]).
The decision should not be read as deciding that contractual provisions allowing payment to be withheld will override an arbitral award or a judgment enforcing that award. The proposed appeal raised cl 42.12, but the Court did not determine its construction or operation. Nor did it decide the outstanding s 34 issue ([24]-[26], [39]).
The supplied judgment contains no decisions made after Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2026] NSWCA 204, and therefore provides no evidence about how later courts treated this judgment. It would not be grounded in the available source to claim that later courts have followed, distinguished, or otherwise applied it.
The judgment itself refers to earlier authorities on stays, procedural appeals, arbitration and security. It cites Alexander and Kalifair for the principles governing stays pending appeal ([33]); Michael Hill Jeweller for a concise statement of the test ([34]); Collier for the successful party's prima facie entitlement and examples of prejudice ([35]); and Mushroom Composters for the possibility of requiring security as the price of a stay ([36]).
For the arbitral context, Price AJA refers to Elders International and Gutnick, as well as Onerati and Cockatoo Dockyard ([42]-[43]). Those citations support the Court's consideration of the CA Act's objectives and the possibility, with some hesitation in the authorities, of a stay of execution of a judgment enforcing an arbitral award. They are prior authorities, not subsequent treatment of the 2026 decision.
The judgment also identifies the earlier litigation between Martinus and Qube, including NSW Supreme Court and Court of Appeal decisions and the High Court's refusal of special leave in 2025 ([1]). Those cases form the background to the dispute. They do not establish subsequent treatment of the present stay ruling.
The judgment did not decide the application for leave to appeal. Its assessment that the appeal was arguable but not strong was preliminary and confined to the stay question ([39]). The outcome of the leave application, and any appeal if leave were granted, is not stated in this judgment.
The Court did not decide the proper construction or effect of cl 42.12. Martinus relied on the clause as a separate contractual basis for withholding payment while a dispute remained pending, but the Court's task was whether to stay enforcement, not to determine that contractual issue on its merits ([17]-[18], [24]-[26]).
The judgment likewise did not decide the substantive s 34 argument under the Security of Payment Act. That issue had not been included in the separate questions determined by the arbitrator, and the primary judge rejected Martinus' public-policy challenge to enforcement. Price AJA did not revisit that merits decision in this stay application ([9], [14]-[15], [39]).
The reasoning leaves the specific interaction between the finality provisions of the CA Act and a stay pending an appeal in a case without a challenge to the award dependent on its circumstances. Price AJA notes that prior authorities show hesitation about such a stay, but grants one conditionally here ([43]-[45]). The decision does not set out a categorical rule that all such stays are available or unavailable.
Finally, the order has a defined procedural endpoint. It stays enforcement pending determination of the leave application and, if leave is granted, the appeal, but the stay lapses if the payment condition is not met within 14 days ([48]). The judgment does not report whether the condition was fulfilled or what happened in the subsequent proceedings.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd atf Moorebank Industrial Terminals Assets Trust [2026] NSWCA 204
Hearing dates: 14 September 2026
Date of orders: 25 September 2026
Decision date: 25 September 2026
Before: Price AJA
Decision: (1) Upon the condition of the applicant paying into court the amount of $26,431,253.63, being the balance of the judgment amount ordered by Peden J on 4 September 2026, within 14 days of the date of these orders, stay the enforcement of the judgment pending the determination of the applicant’s application for leave to appeal and, if leave be granted, the determination of the appeal.
(2) The stay referred to in Order 1 is effective immediately but is to lapse if the condition has not been fulfilled by the applicant upon the expiration of the 14 days namely on 9 October 2026.
(3) The costs of the notice of motion filed on 8 September 2026 be costs in the appeal.
Catchwords: CIVIL PROCEDURE – application for stay of enforcement of judgment pending leave to appeal – where primary judge made orders enforcing arbitral awards as judgment pursuant to Commercial Arbitration Act 2010 (NSW) – where applicant’s appeal confined to primary judge’s dismissal of stay application – whether arguable case on appeal – whether applicant would suffer prejudice if stay not granted – whether balance of convenience favours granting stay to preserve status quo – whether stay should be granted on terms that applicant pay judgment debt into court – practical solution in the interests of both parties
Legislation Cited: Civil Procedure Act 2005 (NSW), s 135
Building and Construction Industry Security of Payment Act 1999 (NSW), s 34
Commercial Arbitration Act 2010 (NSW), ss 1C, 5, 35, 36
Uniform Civil Procedure Rules 2005 (NSW), r 51.44
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30
Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114; (2025) 21 BPR 45,863
Bolton v WAM Active Ltd [2025] NSWCA 81
CBI Constructors Pty Ltd v Chevron Australia Pty Ltd (2024) 283 CLR 172; [2024] HCA 28
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Cockatoo Dockyard Pty Ltd v Commonwealth of Australia (No 3) (1994) 35 NSWLR 689
Collier v Country Women’s Association of New South Wales [2017] NSWCA 303
Deputy Commissioner of Taxation (Cth) v Yosemite Afforestation Pty Ltd (1988) 19 ATR 1326
Elders International Australia Pty Ltd v Beijing Be Green Import & Export Co Ltd [2014] FCAFC 185; (2014) 324 ALR 194
Foundas v Arambatzis (No 6) [2024] NSWCA 231
House v The King (1936) 55 CLR 499; [1936] HCA 40
Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182
In re the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318
Indian Farmers Fertiliser Cooperative Ltd v Gutnick (No 2) [2015] VSC 770
John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Keybridge Capital Ltd v Bolton [2026] NSWCA 109
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 3) [2024] NSWSC 1483
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2023] NSWSC 1550
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd in its capacity atf the Moorebank Industrial Terminals Assets Trust [2026] NSWSC 316
McCall v SMRT Log Pty Ltd [2026] NSWCA 191
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
Mohareb v State of New South Wales [2023] NSWCA 289
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231
New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602
Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28
Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 18
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Qube RE Services (No 2) Pty Ltd ABN 95320369982 v Martinus Rail Pty Limited ACN 117147645 [2025] HCADisp 171
Qube RE Services (No 2) Pty Ltd v Martinus Rail Pty Ltd (No 2) [2025] NSWCA 63
Qube Re Services (No 2) Pty Ltd v Martinus Rail Pty Ltd [2026] NSWSC 717
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83
TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118
Category: Procedural rulings
Parties: Martinus Rail Pty Ltd (Applicant)
Qube RE Services (No 2) Pty Ltd (ACN 605 751 782) atf Moorebank Industrial Terminals Assets Trust (ABN 95 320 369 982) (Respondent)
Representation: Counsel:
F Corsaro SC / D Ratnam (Applicant)
TJ Breakspear SC / J Kennedy (Respondent)
Solicitors:
HWLE Lawyers (Applicant)
MinterEllison (Respondent)
File Number(s): 2026/372033
Publication restriction: Nil
PRICE AJA: These proceedings are the latest development in the ongoing saga of litigation between the parties: see eg Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2023] NSWSC 1550; Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 2) [2024] NSWSC 1223; Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 3) [2024] NSWSC 1483; Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49; Qube RE Services (No 2) Pty Ltd v Martinus Rail Pty Ltd (No 2) [2025] NSWCA 63. An application for special leave to appeal was refused by the High Court on 7 August 2025: Qube RE Services (No 2) Pty Ltd ABN 95320369982 v Martinus Rail Pty Limited ACN 117147645 [2025] HCADisp 171. See more recently, Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd in its capacity atf the Moorebank Industrial Terminals Assets Trust [2026] NSWSC 316.
By notice of motion filed on 8 September 2026, the applicant, Martinus Rail Pty Ltd (“Martinus”), seeks a stay of the enforcement of the judgment by Peden J (“the primary judge”) delivered on 4 September 2026: Qube Re Services (No 2) Pty Ltd v Martinus Rail Pty Ltd [2026] NSWSC 717 (“the primary judgment”). In the primary judgment, her Honour made orders in favour of the respondent, Qube RE Services (No 2) Pty Ltd atf Moorebank Industrial Terminals Assets Trust (“Qube”), enforcing partial arbitral awards made by the Arbitrator, the Honourable Robert McDougall KC, dated 15, 22 May 2026 and 4 June 2026 as a judgment entered against Martinus in the amount of $26,439,281.58 (“the judgment debt”), pursuant to s 35(1) of the Commercial Arbitration Act 2010 (NSW) (“the CA Act”).
The applicant’s notice of motion seeks relevantly the following order:
“1. Until further order of this Court [Qube] be restrained from taking any steps to enforce any judgment in [the primary judgment] pursuant to r 51.44(1) of the Uniform Civil Procedure Rules 2005 (NSW) … or s 135 of the [Civil Procedure Act 2005 (NSW)], further and in the alternative.
…”
In Martinus’ summons seeking leave to appeal filed on 8 September 2026, the sole complaint is in relation to the primary judge’s decision to dismiss the applicant’s application (which was filed in the court below) seeking a stay of the primary judgment after it was delivered: Tcpt, 4 September 2026, pp 1-9.
Martinus does not challenge the primary judgment. It is clear from Martinus’ summary of argument in support of their application for leave to appeal and its notice of appeal, that the appeal is confined to the primary judge’s decision to dismiss its stay application, which was a discretionary decision on a matter of practice and procedure: see eg Deputy Commissioner of Taxation (Cth) v Yosemite Afforestation Pty Ltd (1988) 19 ATR 1326; TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118 at [69] (Bell P, Macfarlan and Leeming JJA). Martinus acknowledges that to succeed on appeal it will need to establish error in the primary judge’s decision of the kind identified in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (“House v The King”). It is also well-known that appellate courts generally exercise caution in granting leave to appeal on matters concerning practice and procedure: see eg In r**e the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318 at 323 (Jordan CJ); PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5] (Bell P and Simpson AJA) (“PPK Willoughby”); Mohareb v State of New South Wales [2023] NSWCA 289 at [12] (Gleeson and Stern JJA); McCall v SMRT Log Pty Ltd [2026] NSWCA 191 at [18] (Kirk and Free JJA).
The substance of the dispute essentially arises from two separate contracts entered into between the parties for work to be carried out on an infrastructure development in Moorebank, known as the Moorebank Intermodal Terminal Project (“Moorebank Project”). Those contracts dated 8 July 2022 are referred to respectively as the “Interstate Terminal Works Contract” and the “Interstate Rail Access Works Contract” (together, “the Contracts”). The Contracts can conveniently be dealt with together as they contain substantially similar terms including relevantly incorporating an amended form of the general conditions of contract (AS4000-1997). By notices on 25 September 2025, Qube purported to terminate the Contracts for alleged breaches by reason of Martinus’ delays and failure to expeditiously proceed with the works. Following Martinus’ failure to remedy those alleged breaches, Qube exercised its right of termination for convenience under cl 40A of the Contracts. It is common ground between the parties that the Contracts were terminated on 25 September 2025.
However, it appears that over the course of 2023 and 2024, Martinus lodged several adjudication applications against Qube, claiming entitlements to progress payments in respect of the Moorebank Project under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the SOP Act”). In resulting adjudication determinations made under the SOP A**ct, it was determined that Qube was required to pay Martinus an amount totalling around $80 million, which Qube ultimately paid. Subsequently, Qube commenced arbitration proceedings seeking recovery of the amounts it claimed Martinus had no contractual entitlement to receive and for which it considered were overpayments. Qube argued it was entitled to restitution of those amounts it had paid.
In March 2026, Qube made an application to the Arbitrator for determination of a separate question concerning whether various claims made by Martinus were either time-barred or barred by virtue of certain provisions under the Contracts. The Arbitrator resolved to determine those matters as separate questions and delivered three partial arbitral awards.
“106. … I note … that Martinus pleads a counterclaim for misleading or deceptive conduct contrary to the Australian Consumer Law … Qube explicitly accepted that nothing that is contained in this Partial Award would have any effect of barring, or foreclosing, or rendering me functus officio in respect of, any claim for misleading or deceptive conduct.
- I note … that Martinus pleaded … that to the extent that any of [the clauses of the Contracts] restrict or modify its entitlement to be paid for work completed under the Contracts for Qube’s benefit, they are void and unenforceable either pursuant to [s 34 of the SOP Act] or at common law as a penalty. I have dealt with the penalty argument … It follows from what I said that the argument is no more sustainable …
- The argument under [s 34 of the SOP Act] was not included in the questions to be the subject of separate determination. When I raised this, the parties agreed that it should not be decided as part of the hearing and determination upon those questions. It is therefore excluded from consideration.
- … Martinus made an application to the effect that I should refrain from dealing with the separate questions, including … on the basis that their decision would lack utility. I do not accept that the separate determination procedure did lack utility. On the contrary, on my conclusions the ambit of Martinus’ counterclaims is very substantially reduced … I therefore decline to accede to Martinus’ application.
- Nor do I see any other reason not to take the separate determination through to its conclusion. … I am satisfied that each party had and used a reasonable opportunity to debate the issues, particularly taking into account that they were not novel but, had been raised in Qube’s [pleadings].
Relief
- My conclusions set out above lead, necessarily, to the question of what, if any, relief is appropriate to give effect to them.
- Qube’s application was for summary judgment in its favour … My understanding is that the amount stated [set out in an annexure] represents the amount that Qube has paid to Martinus pursuant to the determinations of an adjudicator in one or other of the adjudication applications brought by Martinus against Qube under [the SOP Act]. Qube claims restitution of that amount, together with interest.
- It is uncontentious that payments made under [the SOP Act] regime are, in effect, on account. They do not affect any rights that a party may have under the applicable contract … Where there are proceedings before a court or tribunal in relation to the contract, orders may be made for restitution of amounts paid under [the SOP Act] regime …
- In the course of the hearing of Qube’s application, I asked the parties to give me an agreed statement of the amount paid in respect of each claim and an agreed statement in respect of, or means of calculating interest.”
“11. Qube submitted that it was entitled to an order for restitution of all monies paid by it to Martinus in respect of the Barred Claims, together with interest. …
…
- Qube provided evidence … of the amounts it had paid to Martinus in respect of barred claims. That amount totals $28,691,212.52 including GST, and … interest at the [s 100 of the Civil Procedure Act 2005 (NSW)] rate (9.6% per annum simple) of $2,517,133.31 calculated up to 20 May 2026. Those are the amounts that it seeks to have repaid, together with interest from 21 May until payment. Martinus disputed those figures, and pointed out what it said were obvious errors. I will leave it to the parties to sort out the total repayment in respect of the Barred Claims, and interest thereon until 5 June, which is the date I will fix for repayment.
- I must note that Martinus submitted that there should be no order for payment. It noted that I had stated at [106] of the First Partial Award that its counterclaim for misleading or deceptive conduct had not been resolved. However, Martinus did not put submissions to show how that counterclaim, in whatever way it might be determined, could have any impact on, let alone somehow bar, Qube’s entitlement to have repaid to it amounts for what were, on my findings, contractually invalid (because barred) variation claims that ought never to have been paid to Martinus.
- If Martinus’ submissions were, in some way, intended to advert to a possibility that Qube might not be able to meet any claim for damages that might be provided against it for misleading or deceptive conduct, Martinus offered no evidence to show how this could be so.
- Next, Martinus noted that there was a [SOP Act] argument referred to at [108] of the First Partial Award. As I there said, neither Martinus nor Qube had proffered that question as one to be decided as a separate and preliminary issue. It having been excluded from consideration, I do not see why the fact that it is a pending issue should be allowed to interfere with Qube’s entitlement to have repaid to it amounts that should never have been paid. If the point is argued at the final hearing and it is sustained, Martinus would be entitled to recover, by way of damages, moneys exacted from it as an illegal penalty (on the assumption, of course, that it proves its entitlement to have been paid those monies both as a matter of contract law and as a matter of quantum). I would have no difficulty permitting an amendment to Martinus’ [counterclaim] to plead this specifically as an issue. This point was raised during the hearing on 20 May 2026. Qube stated that it would raise no objection to the penalty point being run this way should it be necessary to do so.
- It follows, in my view, that an order for repayment of the amounts paid in respect of the Barred Claims, together with interest, should be made.”
“22. Martinus submitted that I should find that Qube had no present entitlement to restitution of any of the amounts that it claimed. It referred to its pleaded issue that in substance, the time bar provisions on which Qube relied were unenforceable by reason of [s 34 of the SOP Act]. Martinus submitted that any ‘entitlement’ that Qube might have was defeasible by the operation of [s 34 of the SOP Act]. …
- It is correct to say, as Martinus put, that ‘the application and operation of [s 34 of the SOP Act] has yet to be determined’. It followed, Martinus submitted, that I could not find that Qube had any present final entitlement to be repaid any of the amounts paid to Martinus in respect of the Barred Claims.
…
- Qube submitted, correctly, that it was Martinus that had elected not to have [the SOP Act] argument included in the separate question which was heard and decided. That, Qube submitted, was a ‘forensic decision’ made by Martinus: a decision that Qube characterised as one ‘not to rely on such matters in opposition to Qube’s position as part of the Separate Question’. Thus, Qube submitted, it was not open to Martinus, having chosen to exclude [the SOP Act] issue from the issues debated, now to argue that Qube should not have restitution in any event because that issue had not been put up for debate and decision.
- The position, in my view, is that I have decided the separate questions and have decided, in effect, that each of the Barred Claims identified in the First and Second Partial Awards, was unsustainable, or barred, by reason of one or other of the contractual provisions to which I have referred. It followed, necessarily, that Qube had no contractual liability to pay those amounts to Martinus and Martinus had no contractual entitlement to be paid them. I accept that the adjudicator who dealt with the relevant adjudication applications and made the relevant determinations decided otherwise, but the whole point is that those determinations were interim, or on account, and [were] open to be reviewed on a final and substantive hearing in a Court or Tribunal of competent jurisdiction.
- It follows, in my view, that Qube is entitled to relief of the kind that I identified in the Second Partial Award, and that the relief should now be expressed in terms of a monetary amount. That was the specific nature of the relief that Qube claimed in its application for the separate question. It was always Qube’s application that if I held that any of the relevant claims had been contract-barred, it should have restitution of any amount [it] had paid to Martinus in respect of those claims. It is not, in my view, open to Martinus, having excluded [the SOP Act] issue from consideration, now to say that the relief claimed by Qube, which I have found to be substantiated for the majority of the relevant claims, should nonetheless be refused, or that my substantive conclusion should be revisited and redecided because the [s 34 of the SOP Act] issue, if argued and decided, might have led to some different conclusion.” (emphasis in original)
“42. …
(a) Declare that the amount payable pursuant to paragraphs 41(c) and 41(d) of the Second Partial Award made in this arbitration on 22 May 2026 is $26,439,281.58 inclusive of interest to 5 June 2026.
(b) Order that the said amount of $26,439,281.58 be paid by Martinus to Qube on 5 June 2026.”
Martinus failed to make payment of the amount specified by 5 June 2026. As a result, Qube commenced proceedings before the primary judge seeking orders enforcing the three partial awards pursuant to s 35 of the CA Act. Martinus resisted enforcement and its principal contention was that to enforce the partial awards would be contrary to the public policy of New South Wales relying on s 36(1)(b)(ii) of the CA Act.
The “policy” argued by Martinus said to be offended essentially re-agitated its point about the unresolved s 34 of the SOP Act argument but was framed in terms of a public policy objection. Given its centrality, Martinus’ s 34 argument was that the contractual time bars were void and that the Arbitrator should not have made a monetary award in favour of Qube. In respect of Martinus’ s 34 argument, the primary judge observed at PJ[45] that Martinus had “accepted that the s 34 [SOP A**ct] argument was not included in the separate questions, which were being determined on a final basis”.
In considering Martinus’ contention, the primary judge set out the applicable principles from a number of authorities when considering a challenge to the enforcement of an arbitral award on public policy grounds: see eg TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83. As to s 36 of the CA Act, which provides the circumstances that must be established in order to refuse recognition or enforcement of arbitral awards, her Honour referred to the paramount object of the CA Act “to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense”, and the limit on curial intervention in the arbitral process pursuant to ss 1C and 5 of the CA Act: PJ[19]-[35]. Her Honour after careful consideration rejected Martinus’ s 34 argument and went on to determine that the partial awards “are final and binding and cannot now be revisited”: PJ[36]-[45]. Thus, her Honour was satisfied no such grounds existed and made orders in favour of Qube to enforce the three partial awards as judgments of the court pursuant to s 35(1) of the CA Act.
Following the delivery of the primary judgment, Martinus was granted leave to file in court a notice of motion seeking that Qube “be restrained from taking any steps to enforce any judgment in these proceedings”. The solicitor for Martinus, Mr David Jury, and senior counsel for Qube, Mr Breakspear SC, appeared before the primary judge and made oral submissions on the motion.
Mr Jury referred the primary judge to cl 42.12 of the general conditions of the Contracts (contained under the dispute resolution mechanism clauses), which provides:
“42.12 Payments
Subject to legislative requirements:
a) the Principal may withhold payment of that part of any amount which is the subject of a dispute; and
b) the Contractor may withhold payment (excluding rent or any rent equivalent) or that part of any amount which is the subject of a dispute.” (emphasis in original)
Mr Jury submitted that cl 42.12 of the Contracts was applicable as the Arbitrator had determined a separate question and there still remained a number of matters pending before him “including the [s 34 of the SOP Act] issue”, which meant that the judgment debt was the subject of the overall dispute which he stated as being “whether one party is entitled to be paid money by the other”: Tcpt, 4 September 2026, pp 3(46)-4(20).
Mr Breakspear submitted that the stay application should be dismissed for the following reasons:
(a) the doctrine of merger meant that “whatever legal rights [the parties had] in contract or [restitution] have merged into [the judgment debt]”; (b) the judgment debt was a final and binding decision upon the parties of both the arbitration proceedings (referring to cl 42.10(j) of the Contracts) and the court; (c) the judgment debt was not (at that time) subject to an appeal; (d) the language of cl 42.12 of the Contracts focusses on “part of an amount” and there could be no ongoing dispute “about that part of the dispute, which is the $26 million judgment debt”; (e) Martinus failed to raise cl 42.12 before the Arbitrator; (f) the court’s duty under the CA Act is to give effect to the award for payment which the court had declared should be enforced; and (g) alternatively, if the primary judge decided to grant a stay, it should be on the condition that Martinus pay the judgment debt amount into court.
After hearing further from Mr Jury, the primary judge said “I accept the submissions made by [Qube]” and dismissed the motion: Tcpt, 4 September 2026, p 7(27-28).
The primary judge heard further submissions from Mr Jury as to the prejudice to Martinus if the stay were not granted. Her Honour said that in exercising the discretion, when weighing up considerations such as the balance of convenience to both parties, that Martinus had not provided evidence of any prejudice besides having the judgment debt enforced against the company. Her Honour further observed that it was not submitted that Qube would be unable to pay back the money if Martinus were successful on appeal and ultimately refused to order a stay.
In the affidavit of Qube’s solicitor, Mr Peter Pether, sworn on 11 September 2026, it appears Qube has taken some steps to enforce the judgment debt but that those steps have been largely unsuccessful. On 8 September 2026, Qube served a garnishee order on National Australia Bank (“NAB”) and another on Commonwealth Bank (“CBA”). As a result of the garnishee orders served, Qube received a modest amount of $8,027.95 from NAB and nil from CBA.
In Mr Pether’s affidavit, he deposes at par 26 that Qube has not yet taken any other steps to enforce the judgment debt. That may have been in response to the query raised at par 10 of Mr Jury’s affidavit sworn on 11 September 2026, as to Qube’s position on whether it would take any further steps to enforce the judgment debt pending the appeal.
(a) merger did not determine the operation of a separate contractual provision being cl 42.12 of the Contracts; (b) the finality of the partial awards did not determine the unresolved s 34 of the SOP Act issue; (c) the words “that part of any amount” under cl 42.12 did not exclude money affected by another dispute; (d) the earlier failure to raise cl 42.12 was relevant but should not have been determinative to the primary judge’s decision to dismiss the stay application; and (e) the CA Act did not prevent a stay of the execution of the judgment debt.
Martinus submitted that these arguments pointed towards it having an arguable case with the principal contention being that it has a separate contractual right pursuant to cl 42.12 of the Contracts to withhold the payment of the money while there is a pending “dispute” (as defined in cl 42.1). In oral submissions, senior counsel for Martinus, Mr Corsaro SC, submitted that the “dispute” relates to the ultimate retention of the money being unresolved whilst the arbitration is ongoing. It was further submitted that the Arbitrator had not decided the construction and operation of cl 42.12. In those circumstances, Martinus argued that the primary judge could have granted a stay of execution of the judgment debt.
With respect to the requirements for leave to appeal, Martinus raised that the primary judge’s decision involves a reasonably clear injustice going beyond what is merely arguable citing Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] (Basten JA, Tobias AJA agreeing) and Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182 at [52] (Bell CJ, Leeming JA and Griffiths AJA agreeing) (“Illawarra Basketball Club”). Martinus does not argue that the proposed appeal raises an issue of principle or question of public importance: see eg Illawarra Basketball Club at [52]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ, Ward P and Basten AJA agreeing); John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188 at [35]-[40] (McHugh JA, Free JA and Price AJA agreeing).
Martinus emphasised that the prejudice it would suffer if a stay was not granted was that Qube would be permitted to circumvent a contractual bargain relying on the principle of pacta sunt servanda (bargains are to be kept). Martinus further submitted that if Qube executed the judgment debt before the appeal was heard, in the absence of a stay being granted the appeal would be rendered nugatory. There was however no submission made by Martinus that if the appeal were to succeed it would be unable to recover the money from Qube nor that there would be any difficulty or delay in Qube repaying the money: TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 at [15] (Handley, Beazley and Stein JJA).
Martinus ultimately contended that the balance of convenience favoured the granting of the stay to preserve the status quo pending the outcome of the appeal.
Qube contended that Martinus’ application for a stay was directly contrary to the declaratory relief and monetary award made by the Arbitrator, which explicitly imposed an obligation on Martinus to pay by 5 June 2026. Qube argued that Martinus is estopped from advancing legal arguments to the contrary, including arguments that ought to have been made to the Arbitrator but were not raised. Qube submitted that the sole jurisdiction to determine the substantive question of whether Martinus is obliged to pay Qube now or await resolution of the remaining disputes was during the arbitration proceedings, and the Arbitrator had already resolved that question against Martinus.
Qube pointed out that the stay application is contrary to the paramount object of the CA Act as stated under s 1C. In that the stay would prevent the arbitral awards from being enforced by Qube notwithstanding that s 35 of the CA Act required these awards to be enforced and further it did not accord with s 5 of the CA Act by permitting intervention by the Court in its enforcement in circumstances not provided for under the Act. Qube’s further contentions were that Martinus had not provided evidence of any prejudice caused to the company if a stay was refused and that Martinus had not established it was in the interests of justice to stay the enforcement of the judgment debt.
In oral submissions, Mr Breakspear SC referred in some detail to the arbitral awards, which included the decision by the Arbitrator to decide the separate questions; that the Arbitrator decided in effect that each of the barred claims identified in the First and Second Partial Awards was unsustainable or barred; that it necessarily followed that Qube had no contractual liability to pay those amounts to Martinus for which Martinus had no contractual entitlement to be paid and that the relief should now be expressed in terms of a monetary amount, which was the specific nature of the relief Qube claimed. Mr Breakspear placed emphasis on the Arbitrator’s reasons which I have set out at [11] above, in particular, the Arbitrator’s conclusion at par 27, and submitted that what Martinus was asking this Court to do was precisely what the Arbitrator had decided it was not open to Martinus to do: Tcpt, 14 September 2026, p 17(5-40).
There is no dispute that this Court has the power to grant a stay of the enforcement of the primary judge’s orders under s 135 of the Civil Procedure Act 2005 (NSW) (“CPA”) and r 51.44 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). However, Martinus does not have an automatic right to a stay pending its appeal; the Court’s power is subject to other provisions of the CPA (see eg ss 56-60) and must be exercised judicially: Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114; (2025) 21 BPR 45,863 at [47] (McHugh JA, Bell CJ and Griffiths AJA agreeing); Keybridge Capital Ltd v Bolton [2026] NSWCA 109 at [39] (Stern JA). The overriding principle is what is required by the interests of justice: New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 at [83] (Spigelman CJ, Meagher and Sheller JJA agreeing).
The applicable principles governing a stay pending an appeal are well-known: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 (Kirby P, Hope and McHugh JJA) (“Alexander”); Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20] (Handley, Sheller and Ipp JJA) (“Kalifair”).
The relevant principles were conveniently summarised by Payne JA in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5]:
“The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: [Alexander] at 694-5, [Kalifair] at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.”
“… the successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: T**CN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15].”
A successful party below is entitled to be protected from the risk that if the appeal fails assets which earlier were available to satisfy the judgment debt will no longer be available for that purpose: Kalifair at [28]. It is for this reason that the Court may require the provision of appropriate security as the “price of a stay which may make the judgment creditor a secured creditor”: Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [8], [21]-[22] (Gleeson JA).
As to the assessment of whether Martinus has an arguable case, the Court generally does not speculate on the strength of the appeal or its prospects of success but can make some preliminary assessment in order to exclude an appeal lodged without any real merit such as to simply gain time: Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 18 at [6] (Gleeson JA); Bolton v WAM Active Ltd [2025] NSWCA 81 at [11] (Leeming JA).
The onus is upon Martinus to demonstrate a proper basis for a stay that is fair to all parties has been made out: Alexander at 694; Foundas v Arambatzis (No 6) [2024] NSWCA 231 at [45] (Ward P, White and Kirk JJA).
On my preliminary assessment, having considered the arguments raised by Martinus in its application for leave to appeal in combination with the requirements for leave to appeal, Martinus’ need to establish House v The King error and the general reluctance for the grant of leave in appeals from discretionary decisions on matters of practice and procedure, I am prepared to proceed on the basis that the applicant has an arguable case but I would not consider it to be a strong one.
As to the prejudice to Martinus if a stay is not granted, should Qube enforce the judgment debt and receive the money before the hearing of the application for leave to appeal, the practical utility of the appeal may be diminished but in the circumstances where there was no evidence of any prejudice arising from the financial position of the parties and neither party submitted that in any event the other would not be able to pay the judgment debt, I am not satisfied that the appeal would entirely be rendered nugatory. This is because if Martinus were to succeed on appeal, Qube would simply be obliged to return the judgment debt amount and then would be restrained from taking any further steps for its enforcement.
Martinus submitted that the duration of the stay sought is for a limited period of time and the appeal could be shortly determined but at present, the application for leave to appeal does not have a hearing date although there is nothing to suggest that the matter will be delayed so as to cause prejudice to Qube. Neither party raised the need for expedition.
The prejudice identified by Qube arises predominantly from the stay being contrary to the statutory provisions of the CA Act. In the circumstances of this application, the context of the primary judgment and the judgment debt arising from arbitral awards and the objects and purpose of the CA Act are relevant matters to take into account: Elders International Australia Pty Ltd v Beijing Be Green Import & Export Co Ltd [2014] FCAFC 185; (2014) 324 ALR 194 at [14] (Allsop CJ, Rares and Middleton JJ agreeing); Indian Farmers Fertiliser Cooperative Ltd v Gutnick (No 2) [2015] VSC 770 at [6], [11]-[12] (Croft J) (“Gutnick”).
Section 1C of the CA Act provides that the “paramount object” of the Act is to facilitate the “fair and final resolution of commercial disputes … without unnecessary delay or expense”; s 5 states that “no court must intervene except where so provided by this Act”; and s 35 makes an arbitral award binding and enforceable where, as in the present circumstances, Martinus has not established a ground under s 36. There is authority in this context considering that a stay of the execution of a judgment enforcing an arbitral award pending an appeal is possible however there appears to be in those authorities some hesitation to grant a stay in the circumstances where there is no challenge to the award: see *)* (1989) 16 NSWLR 730; (1994) 35 NSWLR 689 at 702 (Rolfe J); cf at [18]-[22]. I am mindful that arbitral awards are intended to provide certainty and finality and that Martinus should not be allowed to subvert the paramount object of the by holding up the enforcement of the awards.
Accordingly, I make the following orders:
Upon the condition of the applicant paying into court the amount of $26,431,253.63, being the balance of the judgment amount ordered by Peden J on 4 September 2026, within 14 days of the date of these orders, stay the enforcement of the judgment pending the determination of the applicant’s application for leave to appeal and, if leave be granted, the determination of the appeal.
The stay referred to in Order 1 is effective immediately but is to lapse if the condition has not been fulfilled by the applicant upon the expiration of the 14 days namely on 9 October 2026.
The costs of the notice of motion filed on 8 September 2026 be costs in the appeal.
**********
Martinus Rail Pty Ltd
Qube RE Services (No 2) Pty Ltd atf Moorebank Industrial Terminals Assets Trust
[1936] HCA 40
[2026] NSWCA 182
[2026] NSWCA 188
[2026] NSWCA 109
[2026] NSWCA 191
[2026] NSWSC 717
(1985) 2 NSWLR 685
(2012) 247 CLR 205
(2016) 93 NSWLR 231
(2024) 283 CLR 172
(2022) 108 NSWLR 342
(1994) 35 NSWLR 689
(2014) 324 ALR 194
(1936) 55 CLR 499
(2002) 55 NSWLR 737
(1989) 16 NSWLR 730
(2016) 258 CLR 525
(2014) 232 FCR 361
(1999) 48 NSWLR 381
Stay of enforcement granted conditionally. Martinus was required to pay $26,431,253.63 into court within 14 days of the 25 September 2026 orders. The stay was effective immediately but would lapse if the condition was not met by 9 October 2026. Costs of the notice of motion were costs in the appeal ([48]).
In my view, the balance of convenience is not clearly in favour of one party and the issues are finely balanced. However, having regard to the ongoing litigious saga between the parties and the modest amount returned from Qube’s garnishee orders, it appears to me a practical solution and sensible approach to this application would be to order a stay on the condition requiring Martinus to pay into court the amount of the judgment debt (less $8,027.95 recovered, see [22] above) within 14 days from the delivery of this judgment.
Such an approach preserves the status quo pending the hearing of the application for leave to appeal. Furthermore, it ensures that Martinus’ ability to pay the judgment debt is not diminished during the stay and the balance of the judgment debt is immediately available to Qube, thereby avoiding further enforcement action if Martinus is unsuccessful in the appeal.
In determining that 14 days is sufficient for Martinus to pay the judgment amount into court, I have taken into account that Qube paid Martinus $80 million; more than three months have elapsed since the Arbitrator ordered Martinus to pay Qube by 5 June 2026 (see [12] above); and Martinus is a large construction and infrastructure company.
The orders I make accord with the interests of justice in this case.