Solicitors:
Colin Biggers Paisley (Plaintiff)
McLachlan Thorpe (First to Fourth Defendants)
File Number(s): 2018/37998
[2]
Judgment
These proceedings came before the Court in the Duty List on 1 and 2 March 2018, on the application of the first to fourth defendants to vary orders made by Darke J on 15 and 23 February 2018.
The plaintiff is Maxiwealth Holdings Pty Ltd (Maxiwealth).
The first defendant, The Mill Goulburn Pty Ltd (the Trustee) is the trustee of a unit trust called The Mill Trust, and in that capacity is the owner of the property known as 285 Sloane Street Goulburn in this State, being the property comprising Folio identifier B/160003 Auto Consol 9765-150 and Auto Consol 1854-217 (the Property).
The second to fourth defendants are respectively Mr Peter Mylonas, Mr Daniel Arthur James Mylonas and Mylonas Investments Aust Pty Limited. It will be convenient to refer to these defendants from time to time as the Mylonas defendants. The fifth defendant is Southern Star Property Group Pty Ltd and the sixth defendant is Mr John Graham Kelly. I will call these two defendants the Kelly defendants.
Maxiwealth commenced the proceedings in the Real Property List by summons filed in Court on 5 February 2018 by leave of Darke J. It filed an amended summons in Court on 8 February 2018.
In essence, the subject matter of the dispute is that Maxiwealth claims that, on or about 7 December 2016, it entered into an option agreement to acquire all of the units in The Mill Trust from the third, fourth and fifth defendants, and on about the same date a second option agreement to acquire all of the shares in the Trustee from the second, third and sixth defendants.
The Trustee and the Mylonas defendants contend that they have terminated the option agreements upon which Maxiwealth sues. The validity of that claim is one that will be required to be decided at the hearing of the proceedings. The position of the Kelly defendants may not be entirely clear. Mr Kelly has supported aspects of the evidence given on behalf of Maxiwealth. In any event, the Kelly defendants did not appear on the application before me and did not take part in that contest.
Maxiwealth also sought interlocutory relief, being the extension of a caveat that it had lodged against the title to the Property, and in the alternative an interlocutory injunction to restrain the Trustee from selling the Property until further order of the Court.
Darke J heard the application for interlocutory relief on 8 February 2018. At the hearing, Maxiwealth abandoned its claim for an order extending the caveat and instead pursued its claim for an interlocutory injunction. The obvious purpose of the claim for interlocutory relief was to preserve the Trustee's ownership of the Property pending the resolution by the Court of the dispute as to whether Maxiwealth was entitled to orders that would secure for it the benefit of the performance of the obligations of the various defendants to transfer to it the units in the Trust and the shares in the Trustee.
Darke J gave judgment on 15 February 2018: Maxiwealth Holdings Pty Ltd v The Mill Goulburn Pty Ltd [2018] NSWSC 115.
For the purposes of these reasons for judgment I will assume a knowledge of Darke J's judgment. The considerations with which his Honour had to deal were complex and finely balanced. It will be sufficient for the purposes of these reasons that I provide the following brief summary.
Maxiwealth was required to pay the price for the assets to be acquired in instalments at specified intervals after it exercised the options. By cl 2 of each of the option agreements it was acknowledged that Maxiwealth had paid what was effectively a deposit of $50,000. The balance of the purchase price of $1,000,000 was payable as to $450,000 by the date that was 8 weeks after the option exercise date. A further $500,000 had to be paid by the date that was 9 months after the option exercise date. There was an additional provision that if the childcare centre that Maxiwealth proposed to build on the Property was completed by the option expiry date, the amount of $500,000 would be payable upon settlement of the transfer of the option units. Additionally, Maxiwealth was required to pay all of the amounts owed by the Trustee as monthly interest payments in respect of a loan secured over the Property, as well as all water and council rates.
However, as was reflected in the payment terms in the option agreements, it was Maxiwealth's intent to construct a child care centre on the Property by means of the rebuilding of an existing building that was erected upon it. It appears that Maxiwealth and the Trustee agreed that the rebuilding could be undertaken before the option agreements were completed and the price paid. That agreement obviously introduced risks to the parties that circumstances could lead to the termination of the option agreements while the childcare centre was wholly or partly complete.
The reconstruction of the childcare centre required the issue of a construction certificate and the making of a building contract with an appropriate builder. While the Trustee remained the registered proprietor of the Property, both steps had to be taken by the Trustee.
There was apparently a delay in the issue of the construction certificate. The evidence available to Maxiwealth was to the effect that the construction certificate was issued to the Trustee on about 10 November 2016.
Maxiwealth's own evidence was to the effect that in early December 2016 it agreed orally with Mr Kelly on behalf of the Trustee:
We will pay the costs of the building works, so you won't need to worry about that and once the childcare centre is substantially built, we will pay the remaining amount of the purchase price.
On about 5 December 2016, Mr Kelly on behalf of the Trustee and one of its directors signed a building contract with Brad Winter Constructions Pty Ltd (the Builder). Under the building contract, the building works were meant to commence on 5 December 2016 and be completed on 30 April 2017.
Maxiwealth executed a notice of exercise of option to purchase the trust units on about 7 December 2016. There is a subsidiary issue about whether Maxiwealth exercised the option to acquire the shares in the Trustee.
Maxiwealth did not pay the instalments of the price when due, and it tendered evidence that it made an agreement with the Trustee through Mr Kelly, as a result of delays in obtaining the construction certificate. The agreement was to the effect that provided Maxiwealth paid a fee as an advance instalment of the purchase price, the Trustee would extend the time for Maxiwealth to pay the purchase price until substantial completion of the childcare works.
The principal issue at the trial of these proceedings is likely to be whether that oral agreement was reached, and if it was, whether Mr Kelly had had authority to bind the Trustee.
On about 11 October 2017, solicitors acting for the Trustee, Peter Mylonas and Mylonas Investments wrote a letter to Maxiwealth in which they asserted that Maxiwealth had abandoned the Property and left it unsecured. They advised that the Trustee would therefore retake possession of the Property. They asserted that the Trustee wanted the sale of the units and the shares to proceed forthwith, and stated that if completion did not take place within 14 days, the Trustee would consider the arrangements under the option agreements to have been abandoned by Maxiwealth and those agreements would be terminated.
By subsequent letter dated 22 December 2017, the solicitors purported on behalf of their clients to terminate the two option agreements on the ground that Maxiwealth had failed to pay the amounts of $450,000 and $500,000 as specified in clause 2(b) of each of the option agreements. (For some reason the solicitors stated that they acted for Peter Mylonas in the first letter and Daniel Mylonas in the second).
In association with these events, the Trustee locked Maxiwealth and the Builder out of the Property, so that the Builder could not continue to perform the building contract.
As a consequence of the Trustee locking Maxiwealth out of the Property, Maxiwealth ceased paying mortgage payments, and water and council rates, and also ceased paying the Builder.
It was Maxiwealth's evidence that, by this time, it had paid the $50,000 deposit for the option agreements, approximately $139,953 in mortgage payments, payments of rates and insurance, approximately $143,877 for work done on the Property under the building contract, and $120,000 in extension fees for the options.
These events gave rise to the difficult questions that Darke J was obliged to decide on Maxiwealth's application for an interlocutory injunction.
On the one hand, if the injunction was not granted, and the Trustee sold the Property, but ultimately on the hearing of the proceedings Maxiwealth succeeded in proving that it was entitled to performance of the two option agreements, the property of the unit trust would have been sold and the proceeds of sale possibly disposed of by the Trustee. That would obviate the benefit to Maxiwealth of its success in the proceedings; and as well, Maxiwealth might lose the benefit of all its expenditures.
On the other hand, if Darke J granted the interlocutory injunction, that would prevent the Trustee from selling the Property for the duration of the proceedings. If the defendants ultimately succeeded, the effect would be that the Trustee would have been wrongly deprived of the benefit of its ownership of the Property during that period.
For the reasons set out in his judgment, Darke J made the following orders:
The Court:
1. Upon the plaintiff by its counsel giving the usual undertaking as to damages, and subject to the condition set out in Order 2 below, orders that the first defendant, by itself, its employees or agents, be restrained, until further order of the Court, from dealing in any way with the [Property];
2. Order 1 above is made conditional upon the plaintiff forthwith:
a) resuming the making of monthly interest payments under registered mortgage AJ748341 in respect of the property;
b) rectifying any outstanding defaults that may have occurred in the payment of monthly interest under the said mortgage from October 2017 to the present time;
c) resuming the making of payments of water rates and council rates in respect of the property; and
d) making an application for expedition in the Expedition List, and thereafter prosecuting the proceedings with all due dispatch.
3. Orders that each party's costs of the application for interlocutory relief be that party's cost in the proceedings.
4. Stands the matter over to the Expedition List on 23 February 2008.
Darke J therefore achieved the best balance that he could fashion between the competing interests of the parties in a manner that would hopefully reduce the risk of the parties suffering loss by the granting of the interlocutory order sought by Maxiwealth. However, Maxiwealth was required to catch up with and continue the payments that it had agreed to make under the option agreements. In the meantime, Maxiwealth was required to seek an order for the expedition of the proceedings, and if it was granted prosecute the proceedings with all due dispatch. The orders made by his Honour concerning expedition were intended to resolve, as early as possible, the underlying source of the difficulty generated by the fact that until the proceedings are finally determined, the parties cannot know whether Maxiwealth is entitled to orders for the performance of the option agreements or whether it is not.
Significantly, Darke J did not make any order requiring the Trustee to give Maxiwealth and the Builder access to the Property to enable the continuation and completion of the childcare centre. While his Honour could have taken that course, had he done so, depending upon the outcome of the proceedings, that approach may have aggravated the possibility of one or other party suffering loss. That would have occurred if Maxiwealth had incurred the balance of the costs of the building work, and then the Court had determined that the option agreements had been validly terminated.
The evidence establishes that some of the defendants were aware before the time of the interlocutory hearing before Darke J that the Builder had given invoices for building work to the Trustee that had not been paid. The amount claimed was about $168,000. Although that outstanding claim was known to the defendants and their solicitor, their solicitor gave evidence that he did not focus upon it in the short time that was available to him to prepare the Mylonas defendants' defence to the interlocutory application (which, as the solicitor pointed out in his evidence, focused on a claim for an order extending the caveat, which was not pursued at the last minute). It is accepted by Maxiwealth that the Mylonas defendants' counsel was not aware of this issue at the time that he conducted the defence of the interlocutory application.
Suffice it to say, Maxiwealth did not bring the issue of the unpaid invoices issued by the Builder to the attention of Darke J, and nor did the Mylonas defendants apply for an additional condition to the grant of the interlocutory injunction that Maxiwealth pay the outstanding tax invoices.
Since Darke J made the interlocutory orders, the Mylonas defendants have come to appreciate that the Trustee is at risk if the outstanding invoices issued by the Builder are not paid, as the building contract is between the Trustee and the Builder. The Mylonas defendants have provided evidence, to which I will return in more detail below, that the Builder has recently informed the Trustee that he may pursue a claim for the outstanding money against it.
While the Trustee believes that it has the benefit of Maxiwealth's promise to pay all amounts due under the building contract, and would issue a cross claim against Maxiwealth to enforce that right in any proceedings instituted by the Builder against the Trustee, the Trustee perceives that it will be at risk as long as the outstanding invoices remain unpaid.
Consequently, the Trustee made a decision to apply to the Court for the variation of the orders made by Darke J on 15 February 2018, to include as a new condition the requirement that Maxiwealth pay the outstanding $168,000 to the Builder.
As it happens, when the proceedings came before Sackar J on 23 February 2018 in the Expedition List, his Honour was advised that the Mylonas defendants intended to apply to Darke J for the variation of the orders that I have referred to above. That led Sackar J to refer the matter to Darke J's Real Property List, on the basis that if the additional condition was included in the earlier orders, and Maxiwealth did not pay the amount owed to the Builder, the effect of Darke J's varied orders would be that the interlocutory injunction would be discharged, and the need for the expedition of the proceedings would disappear.
Subsequently, on 23 February 2018, when the matter came before Darke J again, his Honour inserted a new subparagraph in order 2 of his earlier orders that required Maxiwealth to rectify any outstanding defaults that may have occurred in the payment of water rates and council rates in respect of the Property. I need not be further concerned with that variation to the original orders.
Darke J also made the following note:
3. Notes that the first to fourth defendants seek to discharge or vary the injunction, primarily based upon the existence of outstanding amounts under the building contract entered into with [the Builder].
His Honour made directions for the preparation of that application, and stood the proceedings over before the Equity Duty Judge on 1 March 2018. That is how the application came before me on that date.
By their application, the Trustee and the Mylonas defendants asked the Court to vary the orders made by Darke J to include a new condition to the continuation of the interlocutory injunction that will require Maxiwealth to pay an amount of about $168,000 to the Builder. If Maxiwealth does not pay that amount in accordance with the condition, the injunction will be discharged and the Trustee will become free to sell the Property without regard in a legal sense to the claims made by Maxiwealth in these proceedings.
In facing the task of resolving the dispute the Court is confronted with all of the difficulties with which Darke J had to deal, but the difficulties are compounded by the need to deal with the consequences of Maxiwealth being required to pay the additional $168,000.
It must be remembered that the difficulty that Darke J was unable to resolve, except by requiring that Maxiwealth seek expedition of the proceedings and then pursue that expedition if granted, was that the only real way of limiting the overall losses that the parties may suffer as a result of the dispute is for the proceedings to be determined by judgment as soon as possible. Until it is known whether Maxiwealth has a right to the option agreements being performed, or alternatively that those agreements have validly been terminated, the Court cannot know with confidence what course of action will be the least damaging to the parties.
Plainly, if the Court effectively requires Maxiwealth to pay an additional amount of $168,000 to the Builder at this stage, that is likely to increase the loss that Maxiwealth will suffer if the Court ultimately finds that the option agreements have been terminated. The reason is the uncertainty as to Maxiwealth's legal position concerning the recovery of any monies that it has expended on the basis that the option agreements are enforceable, or in satisfaction of the conditions to the grant of the interlocutory injunction, if it is ultimately found that the option agreements have been terminated. As I understand it, it is the Trustee's position that it does not desire the childcare centre to be constructed on the Property. Clearly, the Trustee has not hitherto offered to compensate Maxiwealth for any of its expenditure on the building works if it is found that the option agreements have been terminated. (At the hearing, counsel for the Trustee informed the Court that in the event of the option agreements being declared to be invalid, it was accepted that the Trustee would be liable to refund to Maxiwealth the amounts paid in performance of the condition to the granting of the interlocutory injunction, but as I understand it, payments made by Maxiwealth under the building contract are to be treated differently. As to those payments, the position simply is one of uncertainty).
At the hearing I initially explored with counsel for the parties the ramifications of Maxiwealth being required to pay the Builder's outstanding claim as a condition to the continuation of the interlocutory injunction. The requirement that such a large amount be paid might reasonably alter the balance of convenience addressed by Darke J as to whether the consequence should be that the Trustee be ordered to give Maxiwealth and the Builder access to the Property to enable the building work to be completed in an efficient manner. That course would require some practical resolution of the question of how the Trustee should compensate Maxiwealth if it is determined at the hearing that the option agreements have been terminated, to reflect the building costs paid by Maxiwealth and the increase in the value of the Property as a result of the childcare centre having been completed. The conclusion was reached that there was no proper basis in an interlocutory hearing for the Court to impose a compensation regime if, as a result of the Court having varied the condition to oblige Maxiwealth to pay the $168,000, it required the Trustee to permit Maxiwealth to complete the construction of the childcare centre.
Suffice it to say that the Trustee and the Mylonas defendants informed the Court that they would not agree to any regime for the compensation of Maxiwealth, if it is determined that the option agreements have been terminated. Their position was that Maxiwealth should simply be required to pay the $168,000 as a condition to the continuation of the interlocutory injunction, and that is the end of the matter. That ended that avenue for the resolution of the present dispute.
The position of the Trustee and the Mylonas defendants is that the Builder addressed an invoice for $168,960 to the Trustee on 1 December 2017, and the invoice was described as a payment claim under the Building and Construction Industry Security of Payments Act 1999 (NSW) (the Act). The Trustee has not apparently served a payment schedule on the Builder under s 14 of the Act, so that s 15 of the Act entitles the Builder to payment of the amount claimed. The Trustee and the Mylonas defendants submitted that by parity of reasoning by which Darke J made the grant of the interlocutory injunction conditional upon Maxiwealth continuing to pay the holding costs that it had agreed to pay under the option agreements, the condition should be varied to oblige Maxiwealth to pay the Builder's outstanding claim, because it was Maxiwealth's own evidence that it had agreed to pay the amounts due under the building contract in order to persuade the Trustee to enter into the contract. If the variation of the condition had the effect that Maxiwealth could not pay the outstanding claim, or decided that it was not commercially warranted that it do so given the legal uncertainty as to whether it would enjoy the benefit of the payment, so be it!
Maxiwealth responded to this new claim by relying upon the principle stated by McLelland J (as his Honour then was) in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 45, where he said:
…the ordinary rule of practice is that an application to set aside, vary or discharge [an interlocutory order] must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application…" (citations omitted).
There was no issue between the parties as to the relevant principle to be applied, and the Trustee and the Mylonas defendants cited my own judgment in Cody v Live Board Holdings Pty Ltd (No 2) [2017] NSWSC 308 at [190], where I said:
In Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 at [11], Ward JA made the following statement as to the relevant principle, with which I respectfully agree:
[11] Mr Murr accepts that an application to set aside, vary or discharge an interlocutory order of a substantive nature (which has been made in contemplation that it will operate until the final disposition of the proceedings) must be based on a material change of circumstances since the original application was heard or on the discovery of new material which could not reasonably have been put before the court on the hearing of the original application (referring to Brimaud v Honeyset Instant Print Pty Ltd (1988) 217 ALR 44, at p 46 per McLelland CJ in Eq).
[12] This principle was confirmed more recently in Levy v Bablis [2012] NSWCA 77, where Young JA referred by way of example to Republic of Kazakhstan v Istil Group Inc [2006] 1 WLR 596 at 604 and noted the rationale for this as being that reviews of interlocutory orders should be limited as a matter of judicial policy (citing Programmed Solutions Pty Ltd v Dectar Pty Ltd [2007] QCA 385).
There is no doubt that the Builder's claim was known to the Trustee and the Mylonas defendants by the time of the hearing before Darke J on 8 February 2018, as the invoice is dated 1 December 2017. As I have recorded above, the solicitor for the Trustee and the Mylonas defendants acknowledged that fact, but sought to justify the matter not having been raised before his Honour by reason of the shortness of time to respond to Maxiwealth's application for the interlocutory injunction, and the fact that the focus of the claim was the application for an extension of the caveat, until that claim was abandoned at the hearing.
I do not accept that this explanation is adequate by itself to avoid the application of the Honeysett principle, as it is the responsibility of the parties to an interlocutory application to appreciate the matters that are relevant to its disposition and to raise them with the Court. Furthermore, the amount of the claim is sufficiently large that it is difficult to accept that it escaped the attention of the Trustee, the Mylonas defendants and their solicitor, if in fact at the time of the hearing they operated under a real concern that the Builder would imminently prosecute the Trustee for the payment of the amount claimed.
The Trustee and the Mylonas defendants responded to Maxiwealth's reliance on the Honeysett principle by relying upon hearsay evidence that there has been a material change of circumstances since the original application was heard by Darke J, in that the Builder has taken steps that justify a conclusion that recovery action against the Trustee is now imminent.
Maxiwealth contested the reality of this submission and submitted that there was no basis for the Court to disturb the subsisting orders made by Darke J.
First, it may be noted that the Builder has not yet taken any formal steps to recover the amount of the claim from the Trustee, notwithstanding the passage of some three months since the date of the invoice.
Secondly, the Builder has not taken any step for the recovery of the amount claimed under the Act, notwithstanding that the Trustee did not respond to the service of the claim by serving a payment schedule.
Maxiwealth submitted that the failure by the Builder to proceed under the Act may be explained by the fact that s 13(2)(a) of the Act requires that a payment claim must identify the construction work to which the progress payment relates. The Builder's invoice does not satisfy this requirement in so far as it simply makes a claim for "work to date". The reason why the Builder has not proceeded under the Act cannot be known, as it was not explored in the evidence. Nonetheless, there is superficially some force in Maxiwealth's submission.
Thirdly, Maxiwealth submitted that the evidence does not allow a finding, even at the interlocutory stage, that formal proceedings by the Builder against the Trustee are imminent. Maxiwealth submitted that the evidence is inconclusive, and that there is a basis for the Court to find that the Trustee and the Mylonas defendants have stirred up the Builder for tactical reasons connected to their attempt to obtain a variation by the Court of the condition.
I agree in substance with this submission by Maxiwealth (without making any finding about whether the Builder has been encouraged to prosecute his claim). The evidence of the Builder's present intentions is second-hand. There is reason to believe that the Builder may have sought the advice of a solicitor, but there is also reason to believe that the Builder may still think his best course is to wait and see what the result of these proceedings is. Apparently, Maxiwealth sought from the Builder some written indication that the Builder would defer pursuing his outstanding claim, but the Builder has declined to respond formally. I do not think that the Court would be on safe ground in attempting to make any interlocutory findings of fact on this issue. The fact is that the Builder has not actually taken any step to enforce payment of the amount claimed by the Trustee. (If in the future the Builder actually does so, that may be a material change of circumstances - provided he is not encouraged by the defendants - but that is a matter for another day).
I should refer to an argument made by Maxiwealth to the effect that the Builder is not entitled under the building contract to receive any progress payments as the parts of the schedule to the contract which deal with the payment of progress claims is blank. That is true, but if the Builder makes payment claims that conform to the requirements of the Act, he will be entitled to progress payments notwithstanding that the building contract may not provide for them: see ss 8(1) and 8(2)(b) of the Act.
The issue of whether there had been any material change of circumstances and whether the balance of convenience had changed became clouded during the hearing when the Trustee and the Mylonas defendants tendered evidence that suggested that a construction certificate had not yet been issued for the building works. The consequence of this revelation was that the application was stood over to the next day to enable Maxiwealth to investigate the issue. On that day, Maxiwealth read an affidavit from its solicitor in which she related conversations with a private certifier and Maxiwealth's architect, which confirmed that a construction certificate had not yet been issued, that it appears that almost all of the steps that need to be taken for the issue of the certificate have been done, but that it will be necessary for Maxiwealth to make certain payments to the certifier and contributions to the Council before the certificate will issue.
In final submissions, the Trustee and the Mylonas defendants sought to make much of the discovery of a further failure by Maxiwealth to make payments, as a ground for the Court to conclude that Maxiwealth either could not, or would not, make the payments necessary for the building work to continue. I do not place much weight on this argument, as the reality is that the Trustee locked out Maxiwealth and the Builder from the Property. There is an obscure issue about whether the Builder ceased work before the date of the lockout (which is no more than a claim made by the Trustee's solicitor at this stage) but in any event it is clear that the effect of the lockout was to bring the possibility of the continuation of the building work to a sudden and absolute halt. It is not surprising that some steps that ought to have been taken to prosecute the works have been left in abeyance since that time.
I regard the revelation that a construction certificate has not yet issued as being more material to the question of whether the Builder has a sound basis for pursuing the claim that he made in the 1 December 2017 invoice against the Trustee. The significance of the absence of a construction certificate to the entitlement of the Builder to commence and continue with the building work, and to the Builder's entitlement to be paid the claim made, was not explored in the evidence. I will only rely upon the absence of the construction certificate as being a factor that adds some doubt to the issue of whether it is imminent that the Builder will take formal steps to recover the amount claimed from the Trustee.
I am not satisfied that the circumstances have changed sufficiently to warrant the Court in varying the orders made by Darke J on 15 February 2018. At this stage, there is at least a probability that the Builder will see it in his interests to abide the outcome of these proceedings, so that he will know whether or not he will be able to continue the building work, after insisting upon the payment of any outstanding amounts that are due. The expedition of these proceedings is as much in the Builder's interests as it is of the parties.
I therefore dismiss the application made by the Trustee and the Mylonas defendants for a variation of the current orders, and order those defendants to pay Maxiwealth's costs of the application.
If Maxiwealth succeeds in these proceedings, so that it will become the owner of the units in the trust, it may have a basis for arguing that the costs order in the preceding paragraph should be met by the Mylonas defendants and not the Trustee, because otherwise the result would be that Maxiwealth would pay the costs to which it is entitled out of its own assets. I will reserve that question to the culmination of the proceedings.
As it has transpired, the effect of the Trustee and the Mylonas defendants making the announcement to Sackar J on 23 February 2018 that the present application would be made has been to defer a decision as to whether expedition should be given to these proceedings to 9 March 2018 when the matter will next appear in the Expeditions List. That has resulted at least in an unnecessary delay of 14 days in the issue of expedition being dealt with. While it is true that Darke J's 15 February 2018 order only imposed a formal obligation on Maxiwealth to apply for expedition and to prosecute the proceedings with expedition if expedition is granted, the defendants would be well advised to facilitate expedition and the Court expects them to do so.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 March 2018
Parties
Applicant/Plaintiff:
Maxiwealth Holdings Pty Ltd
Respondent/Defendant:
The Mill Goulburn Pty Ltd
Legislation Cited (1)
Building and Construction Industry Security of Payments Act 1999(NSW)