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[2025] NSWCA 89
procedural. The notice of motion filed 23 April 2025 was dismissed, with costs; no stay was granted.
The Club wanted to prevent money held in Court from being paid out under an order made after its challenge to a construction adjudication had been dismissed. Griffiths AJA considered that the payment-out order was interlocutory, so the Club needed leave to appeal it. The proposed appeal appeared to turn on a calculation that did not account for payments made to the Sub-Contractor and the resulting reductions in the certified debt. As the Builder remained unpaid and the balance of convenience favoured it, the Court refused a stay and dismissed the motion with costs.
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2,482 words · generated 07/10/2026
Woonona-Bulli RSL Memorial Club Ltd (the Club) applied to the Court of Appeal for a stay of an order concerning money paid into Court in related construction proceedings. The motion challenged order 4(b) of Rees J’s orders of 17 April 2025, which directed that the balance of the money held in Court be paid to Warrane-Design Construct Fit-Out Pty Ltd (the Builder). Griffiths AJA dismissed the Club’s motion with costs ([1], [19], [39]).
6 cited instruments linked from this judgment.
The underlying project concerned conversion of the Club’s bowling green to car parking and an upgrade of an existing car park. The Club contracted with the Builder on 7 December 2023. The Builder subcontracted virtually all the work to All Civil Solutions Group Pty Ltd, referred to in the judgment as the Sub-Contractor ([3]).
The Sub-Contractor served three debt certificates issued under s 7 of the Contractors Debts Act 1997 (NSW). The judgment explains that service assigned to the Sub-Contractor the Club’s obligation to pay the Builder, to the extent of the sums specified in the certificates ([4]). The Club made payments directly to the Sub-Contractor. The table at [6] records, among other figures, payments of $81,978.47 on 20 December 2024 and $284,318.94 on 31 January 2025, reducing the outstanding balance of the 13 December certificate to $736,661.46. A further certificate issued on 13 February 2025, bringing the recorded amount outstanding to $1,200,670.24 ([6]-[7]).
Separately, the Builder obtained an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW). Judgment for $2,141,780.73 was entered against the Club on 3 February 2025 ([8]). The Club began judicial review proceedings challenging part of the determination. Stevenson J later stayed the judgment to the extent of $1,200,670.24, but ordered the Club to pay $941,110.49 into Court to abide the outcome of the judicial review proceedings ([9]-[10]).
Rees J dismissed the Club’s judicial review challenge on 27 March 2025. The next dispute concerned what should happen to the money in Court, including whether any part should be returned to the Club or paid to the Builder or Sub-Contractor ([11]-[13]). In her 16 April reasons, Rees J considered the interaction between the debt certificates, payments made to the Sub-Contractor and the Builder’s adjudication judgment. She directed the parties to provide orders reflecting the amounts she considered should be paid to the Builder and Club ([14]-[18]).
The orders of 17 April stayed payment out for seven days and directed payment of $81,978.47 to the Club, with the balance to the Builder, subject to a further hearing ([19]). The orders made on 24 April refused the Club’s further stay application and directed that $859,134.02 be paid to the Builder, with the balance to the Club ([20]-[22]). The Club’s notice of appeal and stay motion concerned the payment-out decision. Griffiths AJA noted that the notice of motion was directed to the 17 April orders, although those orders appeared to have been overtaken by the 24 April orders ([24]).
Griffiths AJA dealt with the motion by considering the proposed appeal, the statutory accounting issue, the balance of convenience and whether leave to appeal was required. The judgment did not decide the substantive appeal. It assessed whether the material justified a stay pending that process ([26], [28], [32], [34]).
The Club argued that Rees J had erred by saying that the Club continued to incur contractual payment obligations after judgment was entered, because the $284,318.94 payment had been made on 31 January, before judgment on 3 February. Griffiths AJA accepted the date point, but considered it did not establish an arguable or material error. He read Rees J’s reasoning as referring to continuing contractual obligations, including those associated with Progress Claim 14, rather than incorrectly placing that particular payment after the judgment date ([26]).
The Club also challenged the conclusion that paying $284,318.94 out of the Court funds to the Club would effectively refund its payment of Progress Claim 14. Griffiths AJA did not finally decide the strength of that appeal point. He did, however, identify substantial force in the Builder’s response: the payment to the Sub-Contractor reduced the debt certificate under s 12(2) of the Contractors Debts Act ([28]-[30]).
The judgment set out the relevant arithmetic. The 13 December certificate was for $1,102,958.87. After the Club paid $81,978.47 to the Sub-Contractor, the outstanding amount became $1,020,980.40. After the further payment of $284,318.94, it became $736,661.46. The Builder argued that the Club’s proposed calculation nevertheless discounted the Builder’s adjudication judgment by the full original certificate amount. Griffiths AJA agreed that this cast real doubt on whether the appeal ground was arguable, and described the grievance as appearing to concern arithmetic rather than a question of principle ([6], [29]-[30]).
The Court also considered the balance of convenience. Griffiths AJA found that it weighed heavily in favour of the Builder, which had still not been paid the money owed to it by the Club. He linked that circumstance to the policy objectives of the SOPA ([32]). The Builder provided evidence about its financial position, including an accountant’s statement headed “Solvency Declaration”. The judge gave that evidence only limited weight, noting its form and the haste with which it had been prepared ([33]). The decision therefore did not rest on an unqualified finding about the Builder’s financial position.
A further obstacle was the appeal route. The Club’s notice of appeal challenged the payment-out order, not the final order dismissing the judicial review summons on 27 March. Griffiths AJA characterised the payment-out order as interlocutory: it gave effect to the parties’ rights consequentially upon the condition attached to Stevenson J’s initial stay. The Club therefore required leave to appeal ([34]-[36]). The proposed ground did not, in the judge’s view, articulate a novel or other issue of principle warranting leave. He also declined to grant a short stay to allow the Club to file an amended summons seeking leave ([37]-[38]).
The motion was consequently dismissed with costs. The judge declined the Builder’s request for indemnity costs ([39]).
The judgment is an application of existing procedural and statutory principles to an unusually complex sequence of construction payments and court orders. It does not announce a new general test for stays or alter the statutory text. Its significance in this record is principally in its classification of the payment-out order and its treatment of the account under the Contractors Debts Act.
Before this decision, the relevant procedural sequence included a final order dismissing the Club’s judicial review summons, followed by orders dealing with money paid into Court. Griffiths AJA distinguished the final decision on the judicial review summons from the later payment-out order. The latter was characterised as interlocutory because it worked out the consequences of the earlier stay arrangement ([34]-[35]). The practical consequence in this case was that leave to appeal was required.
For the statutory debt issue, the judgment states that service of the certificates operated under s 8(1) to assign the relevant payment obligation to the Sub-Contractor. It also states that, under s 12(2), when part of a debt was discharged, the assignment in respect of that part ceased to operate ([29]). The application of these provisions made the payments to the Sub-Contractor important to the calculation of the remaining assigned amount. The judgment’s table illustrates those reductions in this dispute ([6]).
After the decision, the procedural result was that the payment-out order was not stayed by the Court of Appeal. The judgment does not purport to resolve every possible dispute about the interaction between the CD Act and SOPA. Rather, Griffiths AJA rejected the Club’s contention that this particular notice of appeal disclosed an issue of principle warranting the requested stay, and treated the proposed calculation as a substantial weakness in the application ([30], [37]-[39]).
The judgment refers to Tjiong v Chang [2025] NSWCA 25 at [267] and cases cited there for the established distinction between final and consequential orders ([35]). It does not reproduce the detailed reasoning in Tjiong, so the present judgment supports the limited proposition that the distinction was applied in classifying this order. It would go beyond the text to attribute a broader formulation to this decision.
At [26], Griffiths AJA accepted that $284,318.94 was paid on 31 January, before judgment was entered on 3 February. He nevertheless considered the date point did not show an arguable or material error. In plain English, a correct factual correction does not by itself establish that the reasoning challenged in the appeal was wrong in a way relevant to the stay.
At [29], the judge described how ss 8(1) and 12(2) applied to the certificates. Service assigned the payment obligation to the Sub-Contractor, while partial discharge reduced the part of the assigned debt that remained operative. In plain English, the amounts paid directly to the Sub-Contractor had to be reflected in the balance outstanding; the original certificate amount could not simply be treated as unchanged for the relevant calculation.
At [30], the Court agreed that the Club’s calculation did not account for the reductions made by the two payments. The judge said this cast “real doubt” on whether the appeal ground was arguable and suggested that the dispute concerned arithmetic rather than principle. This was an assessment made for the stay application, not a final determination of the proposed appeal.
At [32], Griffiths AJA said the balance weighed heavily in favour of the Builder because it remained unpaid. In plain English, the Court considered the consequences of withholding the funds against the background that the Builder had not received the money the Club owed.
At [34], the judge said the Club “plainly” required leave to appeal. The reason was the character of the challenged order, not simply its label: it was consequential and interlocutory, rather than the final order dismissing the judicial review summons.
At [37], the Court rejected the suggestion that the proposed ground raised a novel issue of principle. The judge considered that the notice of appeal did not properly articulate such an issue and that the grievance appeared to turn on an arithmetical calculation. The result was that no short stay was granted while the Club sought to amend its appeal process.
The decision is relevant on its facts where a party seeks to stay an order paying money out of Court, and the challenged order follows an earlier final determination or an earlier conditional stay. In that setting, the Court may examine whether the payment-out order is itself final or instead consequential and interlocutory. Here, because the order worked out the consequences of Stevenson J’s earlier stay, leave to appeal was required ([34]-[35]).
It is also relevant where a proposed appeal concerns construction adjudication funds alongside statutory debt certificates served on a principal. The judgment shows why a payment chronology may matter: the certificates, amounts paid, dates of payment and balances outstanding informed the Court’s view of the proposed calculation ([6], [29]-[30]). The decision does not establish that every dispute involving those statutes will be treated in the same way. It records the statutory operation as applied to the amounts and sequence in this case.
A further relevant pattern is a stay application where the proposed appeal appears to dispute the treatment of payments already made to a subcontractor, rather than identify a distinct question of legal principle. Griffiths AJA regarded the Club’s calculation as a serious weakness and observed that it appeared arithmetical in nature ([30], [37]). The decision indicates that the distinction mattered to the assessment of whether the proposed ground justified a stay; it does not decide the appeal itself.
Finally, the case involved a party relying on the other party’s financial position in the balance-of-convenience assessment. The Court considered the Builder’s evidence but gave the accountant’s statement limited weight because of its form and the haste of its preparation ([33]). The judgment therefore illustrates that such evidence may be assessed cautiously, but it does not set out a general evidentiary rule.
The judgment is dated 2 May 2025, and the supplied text contains no later decisions applying, distinguishing or criticising it. No conclusion about subsequent treatment can be drawn from the judgment alone.
The cases mentioned in the decision serve different roles in its reasoning. Tjiong v Chang [2025] NSWCA 25 is cited for the established distinction between final orders and later consequential orders ([35]). Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344 appears in the discussion of a “Grosvenor stay”; the Club’s senior counsel denied that the Club was seeking one, and the judgment does not develop that doctrine further ([33]).
The earlier Supreme Court decisions in the same dispute are recounted as procedural history. Stevenson J’s decision addressed an earlier stay and the amount paid into Court; Rees J’s decisions addressed the judicial review and the later distribution of funds ([10]-[22]). They explain the circumstances that gave rise to this motion, but this judgment does not present them as later treatment of the Court of Appeal’s decision.
The judgment expressly declined to reach a firm view on the ultimate strength of the Club’s appeal concerning the $284,318.94 payment. It considered only whether the proposed ground disclosed a serious question for the stay application ([28]). The substantive appeal issue therefore remained distinct from the decision to refuse a stay.
The reasons also do not determine the full operation of the interaction between the CD Act and SOPA beyond the statutory points needed to assess the motion. The Club had proposed that the interaction raised a novel issue, but Griffiths AJA considered that the single ground of appeal did not properly articulate an issue of principle ([36]-[37]). That finding concerns how the ground was presented in this case; it should not be read as a general holding that no novel interaction between the statutes could arise.
The judgment records uncertainty in the underlying proceedings about whether the adjudication judgment included or excluded the $81,978.47 paid to the Sub-Contractor. Rees J presumed it was not included, and her later orders dealt with payment of that amount to the Club ([16], [18]-[20]). Griffiths AJA also noted that the Builder intended to cross-appeal insofar as that amount was concerned ([28]). The present decision did not resolve that separate issue.
Finally, the reasons do not set out a comprehensive test for every stay application, nor do they decide how the balance of convenience should be assessed in other construction payment disputes. They provide a case-specific assessment based on the unpaid amount, the record of payments, the appeal ground as drafted and the procedural character of the order ([29]-[38]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd [2025] NSWCA 89
Hearing dates: 28 April 2025
Date of orders: 02 May 2025
Decision date: 02 May 2025
Before: Griffiths AJA
Decision: The notice of motion filed 23 April 2025 is dismissed, with costs.
Catchwords: CIVIL PROCEDURE — Court of Appeal — stay of order for payment out of funds in Court — whether leave to appeal required — whether serious question to be tried — where balance of convenience lies
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Contractors Debts Act 1997 (NSW), ss 7, 8, 12
Cases Cited: Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344
Tjiong v Chang [2025] NSWCA 25
Warrane Design Construct Fit-Out Pty Ltd v Woonona Bulli RSL Memorial Club Ltd [2025] NSWSC 123
Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd [2025] NSWSC 271
Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd (No 2) [2025] NSWSC 365
Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd (Supreme Court (NSW), Rees J, 24 April 2025, unrep)
Texts Cited: Nil
Category: Procedural rulings
Parties: Woonona-Bulli RSL Memorial Club Ltd (Applicant)
Warrane-Design Construct Fit-Out Pty Ltd (Respondent)
Representation: Counsel:
T Lynch SC and A Sivanathan (Applicant)
B Hutchins (Solicitor) (Respondent)
Solicitors:
Pigott Stinson (Applicant)
APJ Law (Respondent)
File Number(s): 2025/00156263
Publication restriction: Nil
This judgment relates to a notice of motion filed on 23 April 2025 in which the applicant seeks a stay of part of an order made by Rees J on 17 April 2025. The notice of motion was filed on the same day as the notice of appeal, which claims that the primary judge erred in making an order concerning the payment out of monies paid into Court.
Before addressing the stay application, it is necessary to set out the rather complex history of the proceedings.
The proceedings arise from disputes concerning the conversion of the applicant Club’s existing bowling green to car parking and an upgrade of an existing car park. On 7 December 2023, the Club entered into contract with the respondent (Builder) in relation to the works (Contract). Shortly thereafter, the Builder entered into a sub-contract with All Civil Solutions Group Pty Ltd (Sub-Contractor) for virtually all of the works.
The Sub-Contractor subsequently served on the Club three debt certificates issued by the District Court under s 7 of the Contractors Debts Act 1997 (NSW) (CD Act). The debt certificates are dated 16 August 2024, 13 December 2024 and 13 February 2025 (Debt Certificates). The effect of their service on the Club was, under s 8 of the CD Act, to assign to the Sub-Contractor the Club’s obligation to pay money owed to the Builder under the Contract in the amounts specified in the Debt Certificates.
In response to the Debt Certificates, the Club paid to the Sub-Contractor amounts that it would otherwise have been obliged to pay to the Builder. These payments were made on 12 September 2024, 20 December 2024 and 31 January 2025.
For convenience, I set out a table prepared by Stevenson J (see at [10] below) containing the dates of the Debt Certificates, the amounts of those Debt Certificates, the amounts paid by the Club to the Sub-Contractor, and the balance outstanding at particular points in time:
| Date | Debt Certificate | Payment to Sub-Contractor | Balance Outstanding | | 16 August 2024 | $989,183.55 | | $989,183.55 | | 12 September 2024 | | $989,183.55 | $0.00 | | 13 December 2024 | $1,102,958.87 | | $1,102,958.87 | | 20 December 2024 | | $81,978.47 | $1,020,980.40 | | 31 January 2025 | | $284,318.94 | $736,661.46 | | 13 February 2025 | $464,008.78 | | $1,200,670.24 |
The final line of the table indicates that, as at 13 February 2025, the Club owed the Sub-Contractor $1,200,670.24.
It is also necessary to note as part of the chronology that, on 25 January 2025, the Builder obtained an adjudication determination against the Club under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP****A). On 3 February 2025, the Builder filed the adjudication certificate in the Supreme Court. Judgment was entered in favour of the Builder against the Club for $2,141,780.73 (Judgment). The Judgment was made in proceedings 2025/44205.
On 20 February 2025, the Club commenced separate judicial review proceedings (2025/68603), seeking to quash the adjudication determination to the extent of $1,030,281.79 (SOPA Proceedings).
On 25 February 2025, the Club filed a notice of motion in proceedings 2025/44205 seeking an order staying the Judgment. That notice of motion was determined by Stevenson J on 27 February 2025 (see Warrane Design Construct Fit-Out Pty Ltd v Woonona Bulli RSL Memorial Club Ltd [2025] NSWSC 123). His Honour found that the Judgment overstated the amount due by the Club to the Builder in the amount of $1,200,670.24, being the balance owing to the Sub-Contractor as a result of the assignments produced by service of the Debt Certificates. His Honour noted that the amount of $941,110.49 under the Judgment remained owing by the Club to the Builder. Noting that the SOPA Proceedings were fixed for final hearing on 6 March 2025, Stevenson J ordered that the Judgment be stayed to the extent of $1,200,670.24, but that the Club should pay into Court $941,110.49 to abide the outcome of those proceedings.
The SOPA Proceedings were heard by Rees J on 6 March 2025. On 27 March 2025, her Honour delivered judgment (see Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd [2025] NSWSC 271). As noted above, the SOPA Proceedings were numbered 2025/68603. Her Honour dismissed the Club’s judicial review challenge, with costs.
The SOPA Proceedings returned to Rees J on 3 April 2025 for the purpose of determining the following two issues:
(a) should the monies paid into Court consequential upon Stevenson J’s orders now be paid to the Builder or to the Sub-Contractor, having regard to the Debt Certificates; and (b) should a portion of the monies paid into Court be repaid to the Club, having regard to payments already made by the Club to the Sub-Contractor in response to the Debt Certificates (see the table set out at [6] above)?
Her Honour delivered judgment on 16 April 2025 (see Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd (No 2) [2025] NSWSC 365). This judgment was delivered as part of the SOPA Proceedings, being 2025/68603.
In her Honour’s reasons for judgment, after noting the inter-action between the CD Act and the SOPA and setting out the background history, Rees J noted that, on 29 November 2024, the Builder submitted Progress Claim 13 to the Club in the amount of $2,203,564.59. Her Honour then summarised various events, including service of the Debt Certificates and various payments made by the Club, including the amount of $81,978.47 which the Club paid to the Sub-Contractor in respect of the Builder’s Progress Claim 13. This left $1,020,980.40 of the certified debt unpaid.
Her Honour noted the Builder’s success in obtaining an adjudication determination in the amount of $2,094,018.14. Her Honour then explained that, on 24 January 2025, the Club and the Builder agreed that the Club would resolve the Builder’s Progress Claim 14, in the amount of $284,318.94. Her Honour said at [23]:
… This reduced the amount owing under the notice of claim served on the Club under the Contractors Debts Act 1997 to $736,661.46. It also reduced the “obligation of the principal to pay the money owed under the contract to the defaulting contractor” by the same amount, back to $2,012,039.67. The obligation to pay a portion of that amount had been assigned to the subcontractor, sufficient to discharge the remaining certified debt of $736,661.46. That (still) left $1,275,378.21 available to be paid to the builder.
Her Honour noted that the Builder obtained an Adjudication Certificate and Judgment for the unpaid portion of the adjudicated amount. Her Honour noted at [25] that the evidence did not reveal whether the Judgment sum included or excluded the amount of $81,978.47 already paid by the Club to the Sub-Contractor, but her Honour presumed that it was not included.
After providing further background information, her Honour noted at [31] that the Sub-Contractor had received no further payment from the Club or the Builder in respect of the unpaid portion of the Debt Certificates, being in the amount of $1,200,670.24. Her Honour also noted that the adjudication determination stood in the amount of $2,094,018.14. Her Honour identified the relevant question as being what should be done with the $941,110.49 paid into Court in accordance with Stevenson J’s orders.
After summarising the parties’ respective submissions, Rees J explained at [42]-[44] why she considered that the funds paid into Court should be paid to the Builder, apart from the amount of $81,978.47 which she considered the Club would be entitled to receive if the Judgment sum did not allow for this amount to be paid by the Club to the Sub-Contractor:
The subcontractor remains owed $1,200,670.24, which it is entitled to recover from either the builder or the Club. By the interlocutory regime ordered by Stevenson J, the Club has retained sufficient funds in its bank account to pay $1,200,670.24 of the money owed to the builder to the subcontractor and thereby fully discharge the certified debt: s 9(1), Contractors Debts Act 1997. The subcontractor is entitled to take debt recovery proceedings against the Club if it does not do so and, indeed, has been entitled to take such steps for some time. But the subcontractor has no claim on the funds in Court. Where the Court has already exercised its discretion to fix the amount that is in Court in the manner which I have described, I am not persuaded that I should exercise a discretion to order the funds in Court be paid to the subcontractor; adequate arrangements have already been put in place to protect the subcontractor’s interests.
The Club’s submission that the amount which it owed to the builder under the judgment was reduced by the notices of claim is correct, so far as it goes. The submission ignores the fact that the Club continued to incur obligations to pay money owed under the contract to the builder after judgment was entered, by reason of Progress Claim 14. The Club paid that obligation to the subcontractor, thereby reducing the balance of the notices of claim. To allow that portion of the monies in Court, being $284,318.94, to be returned to the Club would be, effectively, to refund the payment of Progress Claim 14.
The only portion of the monies in Court which the Club may be entitled to receive is $81,978.47, if it be the case that the judgment sum did not allow for the payment of this amount by the Club (to the subcontractor). Otherwise, the balance of the funds in Court ought be paid to the builder. As the parties are presumably aware of the position in this regard, I request that they bring in orders to reflect the amounts of the funds in Court which ought be paid to the builder and the Club.
1. Direct the respondents to provide short minutes of order by 2pm today to give effect to my judgment.
2. Upon the applicant by its counsel giving the usual undertaking to damages, and upon the first respondent by its counsel giving a further usual undertaking to damages, stay any payment out of court for 7 days.
3. Stand to matter over to 9.30am on 24 April 2025 before Rees J.
…
4. Subject to Order 3, order that the monies paid into Court by the plaintiff be paid out as follows:
(a) $81,978.47 is to be paid to the plaintiff; and
(b) the balance is to be paid to the first defendant.
The Club’s notice of motion filed on 23 April 2025 challenges order 4(b) of those orders.
1. Refuse the plaintiff’s application for a stay.
2. Order that the money paid into Court by the plaintiff be paid out as follows:
a. $859,134.02 to the first defendant; and
b. The balance to the plaintiff.
3. The applicant to pay 50% of the respondents’ costs of the notice of motion filed on 5 March 2025.
4. Plaintiff to pay 25% of the first defendant’s costs of the notice of motion filed on 5 March 2025.
Her Honour gave ex tempore reasons for the orders dated 24 April 2025, including for refusing the Club’s application for a stay in the amount of $284,318.94, which the Club contended ought not to be paid to the Builder (see Woonona-Bulli RSL Memorial Club Ltd v Warrane-Design Construct Fit-Out Pty Ltd (Supreme Court (NSW), Rees J, 24 April 2025, unrep). Her Honour noted that the Club had filed a notice of appeal the previous day. She described the ground of appeal as not articulating any legal error but rather suggesting an error of mathematics. Her Honour also noted that in circumstances where no evidence had been provided as to the parties’ respective prejudice, the Club had failed to discharge its onus of demonstrating that it was exposed to a real risk of prejudice if the stay was not granted. Her Honour noted at [13] that it was not entirely clear whether the Club had a right of appeal or needed leave to appeal. Her Honour’s doubts on this last issue were, in my respectful opinion, well founded, as I will elaborate upon shortly.
Finally, after finding that the balance of convenience favoured the Builder, Rees J refused the Club’s application for a stay. Her Honour ordered that the money paid into Court by the Club be paid out in the amount of $859,134.02 to the Builder, with the remaining balance being paid out to the Club.
As the Builder correctly pointed out, this is the third attempt by the Club to obtain a stay.
I should acknowledge that, at times, I had difficulty grasping the essence of the Club’s argument in favour of a stay. The difficulty was compounded by the obtuse drafting of the single ground of appeal in the notice of appeal. Further confusion is created by the fact that the notice of motion is directed to the orders dated 17 April 2025, but those orders appear to have been overtaken by the orders dated 24 April 2025.
It appears, however, that the Club’s case is primarily directed to the primary judge’s reasoning at [43] of the judgment dated 16 April 2025.
First, the Club contends that Rees J erred in stating there that the Club continued to incur obligations to pay money owed under the Contract to the Builder after Judgment was entered, with reference to Progress Claim 14. As noted above, the Judgment was entered on 3 February 2025. The Club pointed out that the amount of $284,318.94 was paid on 31 January 2025, which pre-dated the Judgment. That is correct, but I fail to see any arguable or material error. At [43], Rees J was simply pointing out that the Club continued to incur obligations under the Contract after 3 February 2025, including by reference to the fact that Progress Claim 14 had been lodged, which enlivened the obligations under the SOPA.
Secondly, the Club contended that the primary judge erred in concluding that, if the amount of $284,318.94 was paid to the Club out of the monies in Court, that would effectively amount to a refund to the Club of the payment of Progress Claim 14.
Although it is unnecessary and inappropriate for the purposes of this application to reach a firm view on the strength of the Club’s appeal in relation to this matter (beyond whether it discloses a serious question to be tried), I consider that there is considerable force in the Builder’s contention that the Club’s position is relatively weak. In particular, the amount of $284,318.94 which the Club paid directly to the Sub-Contractor had the effect, pursuant to s 12(2) of the CD Act, of discharging part of the amount owing by the Club to the Sub-Contractor under the Debt Certificate dated 13 December 2024. The Builder pointed out that it intended to cross-appeal her Honour’s judgment insofar as the amount of $81,978.47 is concerned.
The Builder contended, with some force, that there is a flaw in the Club’s calculation of the amount that should be paid to the Builder out of the monies in Court. The Club claims that that amount is $574,812.38, but that fails to bring to account monies that have been paid by the Club to the Sub-Contractor in reduction of the Debt Certificate amounts. The effect of s 8(1) of the CD Act in the circumstances of this case is that service on the Club of the Debt Certificates operated to assign to the Sub-Contractor the Club’s obligation to pay the money owed to the Builder under the Contract. Moreover, s 12(2) of the CD Act provides that, if only part of the debt is discharged, the assignment effected in respect of that part of the debt ceases to operate.
As detailed in the table at [8] of the First Stay Decision (“Payment Chronology”), on 13 December 2024, All Civil issued a certificate under the CDA to the Club in the amount of $1,102,958.87 (“Second CDA Certificate”). On 20 December 2024, the Club paid $81,978.47 of money that was otherwise owed by the Club to Warrane, to All Civil, in partial discharge of the Second CDA Certificate. Pursuant to the operation of subsection 12(2) that payment had the effect of reducing the operative amount of the Second CDA Certificate from $1,102,958.87 to $1,020,980.40, as detailed in the right hand column of the Payment Chronology. Further, on 31 January 2025, the Club paid another $284,318.94 of money that was otherwise owing to Warrane, to All Civil, in partial discharge of the Second CDA Certificate. Pursuant to the operation of subsection 12(2) that payment had the effect of reducing the operative amount of the CDA Certificate from $1,020,980.40 to $736,661.46, as detailed in the right hand column of the Payment Chronology. Despite this reduction in the operative value of the Second CDA Certificate, at [2.8] of the Club’s submissions, the club discounts Warrane’s SOPA Judgment by the full amount of the Second CDA Certificate ($1,102,958.87). This is an obvious flaw in the Club’s appeal, and as a result, the prospects of the appeal are extremely weak.
HIS HONOUR: Your short point is that the 284,000, the controversial amount has got nothing to do with the amount that was paid into court because the amount that was paid into court relates to an arbitration determination vis à vis payment claim 13 and not 14.
HUTCHINGS: That's correct.
Turning now to the issue of the balance of convenience, I find that the balance weighs heavily in favour of the Builder who, contrary to the policy objectives of the SOPA, has still not been paid the money owed to it by the Club.
For completeness, although senior counsel for the Club denied that it was seeking a “Grosvenor stay” (see Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344), the Builder relied on an affidavit dated 28 April 2025 by Mr Joseph Stephen. Mr Stephen is a director of the Builder. He provided evidence that the Builder had now paid all outstanding amounts to its sub-contractors, except for one payment which was not yet due. Mr Steven also attached a brief statement from the Builder’s chartered accountants, which was headed “Solvency Declaration”. Mr Hutchins, who appeared for the Builder, properly acknowledged that this statement should not be overstated given its form and the haste with which it had been prepared. But, to the extent that it is relevant, I am prepared to give limited weight to the accountant’s evidence that the Builder is solvent, profitable and financially viable.
Finally, I return to the issue, which was raised by the primary judge, as to whether the Club requires leave to appeal. In my view, it plainly does. That is because the notice of appeal filed on 23 April 2025 does not appeal against the final order made in the SOPA Proceedings on 27 March 2025, dismissing the judicial review summons. Rather, it relates to the orders made by Rees J on 17 April 2025 and, in particular, order 4, relating to the payment out of monies in Court. In my opinion, that order is not in the nature of a final order. Instead, it is more correctly regarded as an interlocutory order in the sense that it is an order which gives effect to the rights of the parties. It is consequential upon the working out of the condition imposed by Stevenson J on the initial stay granted in the proceedings 2025/44205.
The distinction between a final order, such as that made by Rees J on 27 March 2025 when the Club’s judicial review summons was dismissed, and subsequent orders which, in effect, are consequential upon the earlier final order, may be elusive, but the distinction is well established (see Tjiong v Chang [2025] NSWCA 25 at [267] and the cases referred to therein).
In circumstances where the Club requires leave to appeal it seems to me that the hurdles to it obtaining a stay are even higher. When I raised the issue of the need to obtain leave to appeal, senior counsel for the Club submitted that there was a proper basis for the grant of leave to appeal and proposed that if leave is required, a stay should be granted pending the filing of an amended summons seeking leave to appeal, which could be done within 24 hours. He added that a novel issue was raised as to the inter-action between the CD Act and the SOPA.
For all these reasons, the notice of motion will be dismissed, with costs. I do not accept the Builder’s submission that this is an appropriate case to award costs against the Club on an indemnity basis. The formal order will be:
The notice of motion filed 23 April 2025 is dismissed, with costs.
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Woonona-Bulli RSL Memorial Club Ltd
Warrane-Design Construct Fit-Out Pty Ltd [2025] NSWCA 89
The notice of motion filed 23 April 2025 was dismissed, with costs; no stay was granted.
I respectfully agree with the Builder’s submission at [28] of its written submissions dated 27 April 2025 (noting that the table referred to is the same table set out at [6] above), which casts real doubt on whether the single ground of appeal is arguable and suggests that the Club’s grievance relates to an arithmetical calculation as opposed to any issue of principle:
I do not accept that the single ground in the notice of appeal raises any issue of principle, whether novel or not. No such principle is properly articulated in that ground of appeal. Rather, as noted above, I consider that the Club’s grievance relates to an arithmetical calculation and does not present an issue of general principle which would warrant leave to appeal being granted. In these circumstances, I do not consider that there should be a short stay as sought by senior counsel. The Club has been on notice since at least 24 April 2025 of the possible need to obtain leave to appeal, but has persisted with a view that leave was not required.
I consider that there is no sufficient basis for granting any stay in respect of the primary judge’s order concerning the payment out of monies paid into Court.